Golby, Terrence v Commonwealth Bank of Australia

[1997] FCA 1155

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)  NG 205 of 1995
)
GENERAL DIVISION	)

BETWEEN:	TERENCE GOLBY AND TIMOTHY HUBERT GOLBY Applicant
AND:	COMMONWEALTH BANK OF AUSTRALIA Respondent

JUDGE(S):	HILL J
PLACE:	SYDNEY
DATED:	25 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The parties bring in short minutes of order to reflect these reasons in a week from today.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY	)   NG 205 of 1995
)
GENERAL DIVISION	)

BETWEEN:	TERENCE GOLBY AND TIMOTHY HUBERT GOLBY Applicant
AND:	COMMONWEALTH BANK OF AUSTRALIA Respondent

JUDGE(S):	HILL J
PLACE:	SYDNEY
DATED:	25 JULY 1997

REASONS FOR JUDGMENT

On 24 December last I gave judgment in these proceedings and directed that short minutes of order be prepared.  Subsequently, when the parties were unable to agree on short minutes of order, I directed them to submit written submissions.

For some unexplained reason, a considerable time elapsed before submissions have been prepared.  One matter alone requires resolution.  That is whether the amount which the applicants are entitled to recover from the Bank should include the costs of the proceedings commenced by them in the Supreme Court of the Australian Capital Territory initially against the Bank and Mr Barry, but subsequently withdrawn against the Bank.  These proceedings were ultimately settled by Mr Barry paying the applicants $30,000 and agreeing to sell lots 5 and 7 in DP815245 and pay the net proceeds to the applicants.

In the event the benefit of the settlement goes, in part, to reduce the amount which the Bank has to pay the applicants.  The cash component was paid to the Bank in 1993.

The applicants submit that, as the Bank has had the benefit of the proceedings, it should bear the costs of them.  Reliance is placed on Shirlaw v Taylor (1991) 102 ALR 551 at 560 approving Harris v Conway [1989] Ch 32 at 51.

Alternatively, the applicants say that it is the Bank’s breach of contract which led to the proceedings being brought in the Territory and so the Bank should bear the costs.

For the Bank it is agreed that the applicants acted unnecessarily in bringing the proceedings in that they joined the Bank but then discontinued against it.  Had the matter proceeded to trial, all issues before all relevant parties could have been tried in the one action.  As it is now, the Bank is left to pursue in separate proceedings, if it can, Mr Barry.  The amount of the costs was $15,283.90.

I am of the view that the costs of the ACT proceedings are properly recoverable as damages against the Bank and are not too remote.  Some part of the amount claimed may include the costs of joining the Bank and then discontinuing.  It is only that part of the costs as could be unreasonable.  I am not clear whether that is the case.  The amount in question would, in any event, be so small as to be insignificant.  If no apportionment has been made I would reduce the costs by $500 to cover the costs which are unreasonable and direct the applicants to draw up and bring into Court short minutes accordingly.  If an apportionment has been made, the short minutes should reflect the entirety of the costs.  Any argument as to apportionment I will hear when the short minutes are brought in which, I direct, should take place a week from today.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:           25 July 1997

Counsel for the Applicant:	SL Walmsley
Solicitor for the Applicant:	McCabe Brown
Counsel for the Respondent:	DH Marr
Solicitor for the Respondent:	LE Taylor
Date of Hearing:	28 and 29 October 1996
Date of Judgment:	24 December 1996