Gregg, Alexandra v Tasmanian Trustees Ltd

[1997] FCA 233

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIAN DISTRICT REGISTRY
GENERAL DIVISION  NO. TG 12 of 1996

BETWEEN

ALEXANDRA GREGG  Applicant

- and -

TASMANIAN TRUSTEES LTD.

(A.C.N. 009 475 629)  Respondent

CORAM:MERKEL J.

PLACE:TASMANIA

DATE:27 MARCH 1997

REASONS FOR DECISION

On 28 February 1997 I delivered my Reasons for Judgment in this matter.

I concluded that, as the applicant had largely succeeded in her claim, the respondent was to pay the applicant's taxed costs of and incidental to the proceeding.

Counsel for the respondent sought, and was granted, leave to file written submissions on the question of costs. Subsequently, in a written submission Counsel for the respondent submitted that:

•the applicant failed in respect of several significant claims made by her;

•the claims upon which the applicant succeeded were different to the case  raised by her pleadings;

•in the circumstances it is appropriate that the parties bear their own costs of the proceeding.

Counsel for the applicant submitted that, as a matter of substance, her client succeeded in obtaining the relief sought and that costs ought to follow the event.

In my view the applicant's submission is correct. The substantive relief sought by the applicant was the setting aside of the mortgage over her matrimonial home. The entitlement to that relief was alleged to arise by reason of breaches of ss.52 and 51AA of the Trade Practices Act 1974 (Cth) and unconscionable conduct of the respondent.

As I stated in my Reasons for Judgment the applicant largely succeeded in those claims. She did so on each of the three bases relied upon at trial. The causes of action upon which the applicant succeeded were always part of her case. The factual sub-stratum for the causes of action broadly remained unchanged from the outset. In these circumstances there is no reason to reduce or discount the applicant's costs which ought to follow the event. Whilst it is true that the applicant failed on several aspects of her claims that failure had little effect on the ultimate course or outcome of the proceedings.

Accordingly, the respondent is to pay the applicant's taxed costs of and incidental to the proceeding.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Decision of the Honourable Justice Merkel.

Associate:

Date:

Place:Tasmania

Date:27 March 1997

Appearances:   Written submissions were received from Ms. Anna Crotty of Anna Crotty Solicitors on behalf of the applicant and Mr. R. Chambers of Shields Heritage & Co. on behalf of the respondent.