Mortgage House of Australia Pty Limited v Mortgage House International Pty Limited

[2004] FCA 1736

FEDERAL COURT OF AUSTRALIA

Mortgage House of Australia Pty Limited v Mortgage House International Pty Limited [2004] FCA 1736

MORTGAGE HOUSE OF AUSTRALIA PTY LIMITED ACN 081 508 054, KENNETH JAMES SAYER AND ONE AUSTRALIA PTY LIMITED ACN 003 173 199 v MORTGAGE HOUSE INTERNATIONAL PTY LIMITED ACN 085 753 699 AND DONG YU XING
N 850 OF 2003

GYLES J
16 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 850 OF 2003

BETWEEN:

MORTGAGE HOUSE OF AUSTRALIA PTY LIMITED ACN 081 508 054
FIRST APPLICANT

KENNETH JAMES SAYER
SECOND APPLICANT

ONE AUSTRALIA PTY LIMITED ACN 003 173 199
THIRD APPLICANT

AND:

MORTGAGE HOUSE INTERNATIONAL PTY LIMITED ACN 085 753 699
FIRST RESPONDENT

DONG YU XING
SECOND RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

16 DECEMBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The respondents pay the costs of the applicants to date excluding the costs of the application made on 21 May 2004.

2.   The applicant may proceed to tax costs forthwith. 

3.   The proceedings stand over to Tuesday 8 February 2005 at 9.30 am.

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	N 850 OF 2003

BETWEEN:

MORTGAGE HOUSE OF AUSTRALIA PTY LIMITED ACN 081 508 054
FIRST APPLICANT

KENNETH JAMES SAYER
SECOND APPLICANT

ONE AUSTRALIA PTY LIMITED ACN 003 173 199
THIRD APPLICANT

AND:

MORTGAGE HOUSE INTERNATIONAL PTY LIMITED ACN 085 753 699
FIRST RESPONDENT

DONG YU XING
SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	16 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a matter in the docket of Beaumont J.  The issues of liability and damages were severed and on 8 October last his Honour delivered a reserved judgment in which the issue of liability, including injunctive relief, was decided and an order made restraining the respondents from using the words ‘Mortgage House’.  His Honour expressly reserved costs. 

2. The first question is my power to deal with this issue.  The Act and Rules which govern the Court do not expressly deal with the question but the decision of the New South Wales Court of Appeal in Wentworth v Rogers (No 3) (1986) 6 NSWLR 642, referring to the decision of the High Court in Orr v Holmes (1948) 76 CLR 632, satisfies me that I have power to deal with the issue of costs, that issue having been specially and separately reserved.

3. The usual rule is that costs follow the event.  Because of the somewhat cloudy procedural situation that has emerged, which I do not need to set out because the transcript will record what has occurred today, I have not only looked at the judgment myself but have asked counsel for the applicant to draw to my attention any topic which might lead to an argument about costs.  I have not, of course, imposed upon him the obligation of putting an argument contrary to the interest of his client.  He has drawn attention to two matters.  The first is that there was an interlocutory application made on 21 May 2004 on the part of his client which might be said not to have been adequately or fully resolved.  Although, no doubt, minds might differ as to the consequences of that, in my opinion it is proper that any order for costs exclude costs in relation to that interlocutory application, in relation to which each party should bear its own costs.

4. The second issue that arises is the fact that the applicant ultimately did not pursue its claim for relief in relation to the Trade Marks Act.  I have heard an explanation for that.  I do not suggest that I have heard a full explanation for it.  In my opinion, where there are various routes to liability there will normally not be a case for severing causes of action for the purpose of costs unless there is some special feature.  The judgment in this case does not, on my reading of it, indicate that there was any such special feature here.

5. Thus, taking account of the history of the matter and taking account of the factors to which I have adverted I order that the respondents pay the costs of the applicants to date excluding the costs of the application made on 21 May 2004.  Secondly, the applicant may proceed to tax costs forthwith.  I take that view because, although technically interlocutory, this is a final disposition of the relevant part of the case.  Thirdly, I order that the proceedings stand over to Tuesday, 8 February next at 9.30 am.  That will either be before myself or the docket Judge whomever that may be.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             23 December 2004

Counsel for the Applicant:	SCG Burley
Solicitor for the Applicant:	Clayton Utz
Date of Hearing:	16 December 2004
Date of Judgment:	16 December 2004