Hanave Pty Ltd v LFOT Pty Ltd - [1999] FCA 572

FEDERAL COURT OF AUSTRALIA
Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572
PRACTICE AND PROCEDURE – Costs – Appeal to Full Court allowed and costs orders made – Subsequent request by respondent to vary costs orders – No submission in relation to costs during course of hearing – Application refused.
HANAVE PTY LIMITED (ACN 001 416 226) v LFOT PTY LIMITED (FORMERLY JAGAR PTY LIMITED)(ACN 050 049 182), PAUL EWEN MITCHELL TRESIDDER and JOSEPH RAYMOND GLEW
NG983 of 1998
WILCOX, KIEFEL and EMMETT JJ
SYDNEY
7 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG983 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

HANAVE PTY LIMITED (ACN 001 416 226)
Appellant

AND:

LFOT PTY LIMITED (formerly JAGAR PTY LIMITED) (ACN 050 049 182)
First Respondent

PAUL EWEN MITCHELL TRESIDDER
Second Respondent

JOSEPH RAYMOND GLEW
Third Respondent

JUDGES:

WILCOX, KIEFEL and EMMETT JJ

DATE OF ORDER:

7 MAY 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application to vary the Court’s orders concerning costs be refused.
2.The costs of the application be costs of the 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

NG983 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

HANAVE PTY LIMITED (ACN 001 416 226)
Appellant

AND:

LFOT PTY LIMITED (formerly JAGAR PTY LIMITED) (ACN 050 049 182)
First Respondent

PAUL EWEN MITCHELL TRESIDDER
Second Respondent

JOSEPH RAYMOND GLEW
Third Respondent

JUDGES:

WILCOX, KIEFEL and EMMETT JJ

DATE:

7 MAY 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

WILCOX and KIEFEL JJ: After judgment was delivered in this matter the respondent, LFOT Pty Limited, sought a variation of the costs order the Court had made. Written submissions were supplied and the appellant provided submissions in reply.
No reference was made to the matter of costs during the hearing of the appeal. This was the appropriate time to put any submission that costs, whether of the trial or appeal, ought not to follow the event. If it had been thought desirable to have the Court’s decision on the substantive issue before putting submissions in relation to costs, as is sometimes appropriate in complicated cases, this could and should have been raised with the Court during the hearing. It is inappropriate for a party to say nothing about costs, or any other ancillary matter, during the hearing, await the outcome of the appeal and then ask the Court to vary its orders.
This same situation arose in Preston Erection Pty Ltd v Speedy Gantry Hire Pty Ltd [1999] FCA 122 (23 April 1999). That was a patent case but the approach taken by the Full Court in that case is equally applicable to the present case. We adopt what was there said.
We refuse the application to vary the Court’s orders. The costs of the application are to be costs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hanave Pty Ltd v LFOT Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] FCA 572
Decision Date: 7 MAY 1999

CaseChat Overview and Summary

In the matter of Hanave Pty Ltd versus LFOT Pty Ltd, the Full Court of the Federal Court of Australia considered an appeal concerning costs orders made after a decision was handed down in the original proceedings. The primary dispute related to the enforcement of costs orders following an appeal where the respondent had failed to make any submissions regarding costs during the course of the hearing. The respondent subsequently sought to vary the costs orders, arguing that the Full Court had overlooked certain factors relevant to the assessment of costs. The court was required to determine whether the respondent's application to vary the costs orders should be granted and, if not, whether the costs of the application should be awarded.

The legal issues before the court encompassed whether the Full Court had erred in not considering certain factors during the initial assessment of costs and whether the respondent's application to vary those costs was justified. The court examined whether the respondent's failure to raise the matter of costs during the hearing precluded them from subsequently seeking a variation of the costs orders. Furthermore, the court had to determine the appropriate costs orders in relation to the respondent's application to vary the initial costs orders.

The Full Court found that the respondent had not made any submissions regarding costs during the hearing, and thus, the court had no basis to consider those factors at that time. The court held that the respondent's application to vary the costs orders was an attempt to relitigate issues that had already been determined. As a result, the application to vary the Court’s orders concerning costs was refused. The Full Court also ruled that the costs of the application to vary the costs orders be awarded as costs of the appeal. This decision underscores the importance of raising relevant issues during the appropriate stages of litigation and the court's reluctance to allow parties to relitigate settled matters.

Orders

Orders of the court

1. The application to vary the Court’s orders concerning costs be refused.

2. The costs of the application be costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG983 of 1998

BETWEEN:	HANAVE PTY LIMITED (ACN 001 416 226) Appellant
AND:	LFOT PTY LIMITED (formerly JAGAR PTY LIMITED) (ACN 050 049 182) First Respondent PAUL EWEN MITCHELL TRESIDDER Second Respondent JOSEPH RAYMOND GLEW Third Respondent
JUDGES:	WILCOX, KIEFEL and EMMETT JJ
DATE OF ORDER:	7 MAY 1999
WHERE MADE:	SYDNEY

JUDGES:	WILCOX, KIEFEL and EMMETT JJ
DATE:	7 MAY 1999
PLACE:	SYDNEY