Lymlind Pty Ltd v Parianos, G

[1995] FCA 554

CATCHWORDS

COSTS - Discretion - each party's partial success taken into

account.

Cummings v Lewis (1993) 41 FCR 559 - Appl

LYMLIND PTY. LTD. & ORS. v GEORGE PARIANOS & ORS.

No. G336 of 1994

BEAUMONT J.

SYDNEY

12 JULY 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )        NO. G336 OF 1994
  )
GENERAL DIVISION                 )

BETWEEN:     LYMLIND PTY LIMITED
  First applicant

ANAGYROS PARIANOS
  Second applicant

MARGUERITA PARIANOS
  Third applicant

AND:     GEORGE PARIANOS
  First respondent

SANTANA COFFEE & TEA   PTY LIMITED
  Second respondent

AND BETWEEN:     GEORGE PARIANOS

Cross-claimant

AND:ANAGYROS PARIANOS AND MARGUERITA PARIANOS

Cross-respondents

CORAM:    BEAUMONT J

DATE:     12 JULY 1995

PLACE:SYDNEY

MINUTES OF ORDER

THE COURT ORDERS:

1. Declare that none of the applicants is beneficially entitled to the property known as 83 Crown Street, Wollongong;

1. Declare that the first respondent is liable to pay the second and third applicants the sum of CHF 1,300,000, together with interest calculated as from 20 May 1989 at the rate provided for in "the Bali deed" (being the deed described in the reasons for judgment), but subject to the right of the first respondent to set-off the expenditure incurred by either respondent on behalf of the applicants, or any of them, from time to time after 20 May 1989, after making due allowance for any amounts received by either of the respondents on behalf of the applicants, including rent;

-2-

(3)I reserve liberty to any party to apply on 14 days' notice in respect of any matter arising under the declaration in para.(2);

(4)Dismiss the cross-claim.

(5)Make no order for costs of the proceedings except (a) order that the respondents pay the applicants' costs of the cross- claim and (b) order that the applicants pay the costs of the respondents of the hearing before Registrar Howard between 2 November and 25 November inclusive.  I direct that all of these costs may be set-off.

(6)Grant leave to 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 )        NO. G336 OF 1994
  )
GENERAL DIVISION                 )

BETWEEN:     LYMLIND PTY LIMITED
  First applicant

ANAGYROS PARIANOS
  Second applicant

MARGUERITA PARIANOS
  Third applicant

AND:     GEORGE PARIANOS
  First respondent

SANTANA COFFEE & TEA   PTY LIMITED
  Second respondent

AND BETWEEN:     GEORGE PARIANOS

Cross-claimant

AND:ANAGYROS PARIANOS AND MARGUERITA PARIANOS

Cross-respondents

CORAM:    BEAUMONT J

DATE:     12 JULY 1995

REASONS FOR JUDGMENT (No.3)
           (On the form of orders and on costs)

I have already given reasons on the date from which interest is to be calculated.  I will now deal with the form of the orders to be made and with the question of costs.

As has been said at p.67 of my reasons, I foreshadowed that I would make orders for the payment of the sum of 1,300,000 Swiss francs ("CHF") together with interest, but subject to certain set-offs.  I have heard further submissions today, and on previous occasions, in this area.

In all the circumstances, in my opinion, the appropriate way in which the matter should now proceed is to make a declaratory order in respect of the liability to make payment of the sum of CHF 1,300,000 together with interest, but to reserve liberty to apply in respect of this declaration. I have decided to take this course because it is possible that there is still some area for disagreement between the parties in terms of the finalisation of the accounts.  There is also to be taken into consideration that one of the parties may wish to exercise a right of appeal.  Strictly speaking, the orders which I would now make would be regarded as interlocutory, with the consequence that there would be no right of appeal in the technical sense.  However, this difficulty may be avoided by my granting leave to appeal, which I propose to do. 

Before pronouncing my orders, there are three matters in this connection which call for special mention.
The first is that I will make a declaration that none of the applicants is beneficially entitled to the property known as 83 Crown Street, Wollongong.  I have previously made such a declaration, but repeat and confirm that declaration so that it is possible to achieve a "speaking" order in respect of the whole of the proceedings to date.

The second matter is that the right of set-off mentioned at p.67 of my reasons is confined to the first respondent, and it has been put to me that that should be expanded to include the second respondent.  I propose to accord with this suggestion.  In strictness, if the matter were to be looked at under the common law of contract, it may be that only the first respondent could have exercised a right of set-off.   But, as previously stated, a possible way of characterising the relevant cause of action is in restitution or "unjust enrichment", that is, as equitable relief against "unconscionable" conduct. In assessing the amount to be awarded under such a cause of action, it should be open to the Court to expand the usual categories of set-off so as to allow either respondent to claim a set-off if this provides a more just outcome.

I also propose to make explicit what is already implicit in the order foreshadowed in this regard by stating that the right of set-off is, in accordance with my previous reasons, in respect of expenditure incurred after 20 May 1989. 

I shall now deal with the question of costs.

The general nature of the discretion in this area was recently considered by Cooper J in his reasons in Cummings v Lewis (1993) 41 FCR 559 at 602-3. It is not necessary that I restate the principles to which his Honour there refers. They are well-established, and I propose to follow them.
         It is apparent from my reasons for judgment, and from the orders which I now make, that each side has enjoyed some measure of success and, conversely, some measure of failure in the proceedings as a whole.  In the principal proceedings, the applicants pursued two alternative claims.  The first was a claim of a proprietary kind, and it failed.  The second, seeking a liquidated sum, essentially for repayment of moneys advanced and interest, succeeded.  At the same time, the respondents brought a cross-claim, seeking to set aside the Bali deeds, and that cross-claim failed.  I propose to take all these considerations into account.

Another matter is that, in the first instance, accounts were taken before Registrar Howard and, subsequently, before Registrar Dawson.  There is no need in my view to make any special order for the proceedings before Registrar Dawson.  In other words, those costs should be picked up as part of the general costs of the proceedings.  However, with regard to the taking of the accounts before Registrar Howard, he made a recommendation on costs, and although I have heard submissions advanced on behalf of the applicants that I should not adopt the recommendation, I see no basis for interfering with it.  Mr. Howard's recommendation, for the reasons he gave, was that the respondents should have their costs of the hearing between 2 November and 25 November inclusive, on a party and party basis, but that each party should bear their own costs from and including 29 November 1994 onwards, including the costs associated with written submissions and on furnishing exchange rates.  I adopt that special order.  

Given the mixed outcome of the proceedings already mentioned, I have concluded that it is appropriate that no order be made for costs of the proceedings as a whole, except in two respects:  First, the respondents should pay the applicants' costs of the cross- claim, and, secondly, the special order recommended by Registrar Howard should be adopted.  In the circumstances, I will direct that those costs may be set-off.

I, therefore, make the following orders in this matter: 

1. Declare that none of the applicants is beneficially entitled to the property known as 83 Crown Street, Wollongong;

1. Declare that the first respondent is liable to pay the second and third applicants the sum of CHF 1,300,000, together with interest calculated as from 20 May 1989 at the rate provided for in "the Bali deed" (being the deed described in the reasons for judgment), but subject to the right of the first respondent to set-off the expenditure incurred by either respondent on behalf of the applicants, or any of them, from time to time after 20 May 1989, after making due allowance for any amounts received by either of the respondents on behalf of the applicants, including rent;

(3)I reserve liberty to any party to apply on 14 days' notice in respect of any matter arising under the declaration in para.(2);

(4)Dismiss the cross-claim.

(5)Make no order for costs of the proceedings except (a) order that the respondents pay the applicants' costs of the cross- claim and (b) order that the applicants pay the costs of the respondents of the hearing before Registrar Howard between 2 November and 25 November inclusive.  I direct that all of these costs may be set-off.

(6)Grant leave to appeal.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont.

Associate

Dated:  12 July 1995