J.A.D. International P/L v International Trucks Australia Ltd

[1994] FCA 372

372 97

JUDGMENT No. ..... n.-.nJ ...... ,

THE FEDERAL COURT OF AUSTRALIA ) NO. SG 63 of 1992

-TRALIA	DISTRICT REGISTRY	1
1

QN APPEAL FROM A JUDGE

DF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: J.A.D. INTERNATIONAL PTY. LTD.

Appellant

AND :  UTERNATIONAL TRUCKS AUSTRALIA LIMITED

Respondent

MINUTES OF ORDERS

glDGES MAKING ORDER:	Keely, Hill and Drummond JJ
PATE OF O m :	10 June, 1994

:	E	D	A	M	-	Brisbane
piE COURT ORDERS THAT:

1.         The respondent pay to the appellant three-quarters of the appellant's costs of and incidental to the trial and judgment at first instance.

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

THE FEDERAL COURT OF AUSTRALIA ) No. SG 63 of 1992

9)

9N APPEAL F N M A JUDGE

E A

BETWEEN:

Appellant

AND :  INTERNAT

Respondent

&xZm!:  Keely, Hill and Drummond JJ

Rh=S: Brisbane

m: 10 June, 1994

REASONS FOR JUDGMENT

When we published our reasons for allowing the

appeal, we referred to what should be done about the costs of

the trial. We observed that the appellant had failed on a

number of issues that took up a significant time at the trial

and said that, for this reason, this was probably a case in which the appellant should recover only part of those costs. However, we gave the parties an opportunity to make written eulrmissions on the point. This opportunity was taken up and the detailed written submissions received have been considered.

The trial extended over eight hearing days. The trial judge did not find it necessary to make findings on a number of the issues raised by the appellant's

misrepresentation case which the appellant set up and pursued. But it is clear from his Honour's reasons that issues which were the subject of extensive evidence at the trial were the subject of findings by the learned trial judge adverse to the appellant: a major issue upon which the appellant failed at trial was its assertion that the engine was constructed of parts of unidentified origin, rather than being a factory-made one. The appellant also failed to establish that the misrepresentation that the engine was a TTA series engine when it was in fact a TA series was a material misrepresentation. (The respondent admitted it innocently misrepresented the truck in this respect in the further particulars of its defence delivered before trial.) This issue, too, appears to have taken up a significant portion of time at the trial.

In our opinion, given these failures on the part of of its costs of those proceedings. It is undesirable that the appellant at trial, we do not think it should recover all

this litigation be further protracted by disputes on taxation. We will therefore order that the respondent pay to the appellant three-quarters of the appellant's costs of and incidental to the trial and judgment at first instance to reflect, in a broad way, the extent to which the hearing was occupied with the litigation of issues on which the appellant failed below.

I certify that the preceding

2 pages are a true copy of the

reasons for judgment herein
of the Court.

Associate: 42

Date:  10 June, 1994

Counsel for the appellant:	R.J. Whitington
Solicitor for the appellant:	Sykes Bidstrup
Counsel for the respondent:	C.S.E. Swan

Solicitors for the respondent:  Finlaysons