EMCL Pty Ltd v Esanda Finance Corporation Ltd

[1999] FCA 1439

FEDERAL COURT OF AUSTRALIA

EMCL Pty Ltd v Esanda Finance Corporation Ltd [1999] FCA 1439

EMCL PTY LTD & FINPAC HOLDINGS LIMITED v

ESANDA FINANCE CORPORATION LIMITED

V 18 OF 1999

TAMBERLIN, SUNDBERG & DOWSETT JJ
MELBOURNE
22 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 18 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

EMCL PTY LTD
(ACN 007 347 622)
First Appellant

FINPAC HOLDINGS LIMITED
Second Appellant

AND:

ESANDA FINANCE CORPORATION LIMITED
(ACN 004 346 043)
Respondent

JUDGE:

TAMBERLIN, SUNDBERG & DOWSETT JJ

DATE OF ORDER:

22 OCTOBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The first appellant is to pay the costs of the respondent of the appeal and applications made therein, and also the costs of the cross appeal.

2.The appeal against the costs order made by Heerey J is dismissed, but that order is varied by excluding therefrom the costs of trial attributable to the issue remitted for re-hearing, which costs are to be determined by the Judge hearing the remitted issue.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 18 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

EMCL PTY LTD
(ACN 007 347 622)
First Appellant

FINPAC HOLDINGS LIMITED
Second Appellant

AND:

ESANDA FINANCE CORPORATION LIMITED
(ACN 004 346 043)
Respondent

JUDGE:	TAMBERLIN, SUNDBERG & DOWSETT JJ
DATE:	22 OCTOBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

1. When judgment in this matter was delivered on 20 July 1999, the Court directed the parties to provide draft Short Minutes of Orders as to costs of the trial and the appeal, together with submissions.  The submissions and draft Short Minutes have been received.

2. We have considered the documents and we are in substantial agreement with the submissions made by Esanda.  Accordingly, we consider that the first appellant should pay Esanda’s cost of the appeal and applications made therein and in relation to the cross appeal.  We are not persuaded that any additional costs on the appeal hearing were attributable to the issue on which the appeal was allowed in part.  In relation to that question, which concerns the appropriate discount rate, we have remitted the issue to a single Judge to determine the applicable rate.  In respect of this question alone, we consider that the order as to costs of the trial made by Heerey J should be varied by excluding therefrom the costs of trial attributable to the issue remitted for re-hearing and by ordering that these costs should be reserved for determination by the Judge hearing the remitted question.

3. Accordingly, the Orders as to costs are:

   1.The first appellant is to pay the costs of the respondent of the appeal and applications made therein, and also the costs of the cross appeal.

   2.The appeal against the costs order made by Heerey J is dismissed, but that order is varied by excluding therefrom the costs of trial attributable to the issue remitted for re-hearing, which costs are to be determined by the Judge hearing the remitted issue.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of The Court.

Associate:

Dated:             22 October 1999

Counsel for the Appellant:	P Searle
Solicitor for the Appellant:	Corrs Chambers Westgarth
Counsel for the Respondent:	K W S Hargrave QC
Solicitor for the Respondent:	Jerrard Stuk
Date of Hearing:	18 May 1999
Date of Judgment:	22 October 1999