Energy World Corporation Ltd v Maurice Hayes and Associates Pty Ltd

[2007] FCAFC 104

FEDERAL COURT OF AUSTRALIA

Energy World Corporation Ltd v Maurice Hayes & Associates Pty Ltd

[2007] FCAFC 104

Energy World Corporation Ltd v Maurice Hayes & Associates Pty Ltd [2007] FCAFC 34 related

ENERGY WORLD CORPORATION LTD ACN 009 124 994 v MAURICE HAYES & ASSOCIATES PTY LTD ACN 063 758 181; MAURICE HAYES & ASSOCIATES PTY LTD ACN 063 758 181 v ENERGY WORLD CORPORATION LTD ACN 009 124 994   
WAD 216 OF 2006

MOORE, TAMBERLIN AND GYLES JJ
13 JULY 2007
SYDNEY (VIA VIDEO LINK TO PERTH) (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 216 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ENERGY WORLD CORPORATION LTD
ACN 009 124 994
Appellant

AND:

MAURICE HAYES & ASSOCIATES PTY LTD
ACN 063 758 181
Respondent

AND BETWEEN:

AND:

MAURICE HAYES & ASSOCIATES PTY LTD
ACN 063 758 181
Cross-Appellant

ENERGY WORLD CORPORATION LTD
ACN 009 124 994
Cross-Respondent

JUDGES:	MOORE, TAMBERLIN AND GYLES JJ
DATE OF ORDER:	13 JULY 2007
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO PERTH) (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.The appeal be allowed in part.

2.The cross-appeal be dismissed.

3.The orders made by Justice Siopis on 11 July 2006 be varied to read as follows:

(1)Judgment be entered for the applicant Maurice Hayes & Associates Pty Ltd in the amount of $162,562.78.

(2)Within seven days of the applicant Maurice Hayes & Associates Pty Ltd being requested to do so by the respondent Energy World Corporation Ltd the applicant shall give the respondent a tax invoice, as defined in the A New Tax System (Goods & Services) Act 1999, in relation to the amount referred to at item (1).

(3)The respondent Energy World Corporation Ltd pay the applicant Maurice Hayes & Associates Pty Ltd interest assessed in the amount of $37,206.17.

(4)The respondent Energy World Corporation Ltd pay the applicant Maurice Hayes & Associates Pty Ltd 75 per cent of its costs of the application, including any reserved costs.

(5)The cross-claimant Energy World Corporation Ltd pay the costs of the first cross-respondent Maurice Hayes & Associates Pty Ltd, including any reserved costs, of the cross-claim.

4.The respondent/cross-appellant Maurice Hayes & Associates Pty Ltd pay the appellant/cross-respondent Energy World Corporation Ltd one half of its combined costs of the appeal and cross-appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	WAD 216 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ENERGY WORLD CORPORATION LTD
ACN 009 124 994
Appellant

AND:

MAURICE HAYES & ASSOCIATES PTY LTD
ACN 063 758181
Respondent

AND BETWEEN:

AND:

MAURICE HAYES & ASSOCIATES PTY LTD
ACN 063 758181
Cross-Appellant

ENERGY WORLD CORPORATION LTD
ACN 009 124 994
Cross-Respondent

JUDGES:	MOORE, TAMBERLIN AND GYLES JJ
DATE:	13 JULY 2007
PLACE:	SYDNEY (VIA VIDEO LINK TO PERTH) (HEARD IN PERTH)

REASONS FOR JUDGMENT

THE COURT

1. We gave judgment in this matter on 21 March 2007:  see Energy World Corporation Ltd v Maurice Hayes & Associates Pty Ltd [2007] FCAFC 34. There is disagreement between the parties as to what orders should be made. Three issues need to be resolved:

   (1)Whether the costs order below should be varied.

   (2)Whether the costs should be adjusted as provided in O 62 r 36A of the Federal Court Rules or taxed in accordance with the scale applicable to proceedings in the District Court of Western Australia.

   (3)The costs of the cross-appeal.

2. The trial judge awarded Maurice Hayes & Associates Pty Ltd, the respondent/cross-appellant to this appeal (the applicant below), 85 per cent of its costs of the application.  This application remained substantially successful notwithstanding the success of the appellant/cross-respondent, Energy World Corporation Ltd, on the question of the proper construction of clause 8.6 of the agreement between the parties which deprived Maurice Hayes & Associates Pty Ltd of some of the fruits of the judgment below.  Energy World Corporation Ltd now submits that no costs order of the trial should be made in favour of Maurice Hayes & Associates Pty Ltd.  In effect, the submission is that each party should bear their own costs of the trial.  That submission is untenable.  Maurice Hayes & Associates Pty Ltd accepts there should be some readjustment of the costs order below and suggests that the figure should be 75 per cent of its costs.  For the reasons advanced by Maurice Hayes & Associates Pty Ltd, that appears a reasonable figure.  It is pointed out that the issue upon which Energy World Corporation Ltd succeeded was only raised by the primary judge after trial and had little effect upon costs.  In the face of Energy World Corporation Ltd not identifying a lesser figure and justifying the computation, we accept the figure proposed by Maurice Hayes & Associates Pty Ltd, which should receive 75 per cent of its costs of the trial.

3. The question of taxation in accordance with the District Court scale was not raised at the trial.  The submission of Energy World Corporation Ltd that such an order should be made should not be entertained in the appeal.  Furthermore, the premise that demands should have been split and an action brought in the District Court is not sound.  All related claims should be dealt with in the one proceeding where possible.

4. As to the cross-appeal, we intended by our observations at [36] that Energy World Corporation Ltd should have half its costs of the combined costs of the appeal and cross-appeal and Maurice Hayes & Associates Pty Ltd have no costs of either the appeal or cross-appeal.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Tamberlin and Gyles.

Associate:

Dated:        13 July 2007

Solicitor for the Appellant/Cross-Respondent:	Christensen Vaughan
Solicitor for the Respondent/Cross-Appellant:	Williams & Hughes
Last day for submissions:	14 May 2007
Date of Judgment:	13 July 2007