Murphy v Overton

[2000] FCA 1043

FEDERAL COURT OF AUSTRALIA

Murphy v Overton [2000] FCA 1043

JOHN JAMES MURPHY v OVERTON INVESTMENTS PTY LTD
N 159 OF 1999

DAPHNE MURPHY v OVERTON INVESTMENTS PTY LTD
N 946 OF 1999

EMMETT J
21 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 159 OF 1999

BETWEEN:	JOHN JAMES MURPHY APPLICANT
AND:	OVERTON INVESTMENTS PTY LIMITED RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	21 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The applicant pay the respondent’s costs of the proceedings.

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 946 OF 1999

BETWEEN:	DAPHNE MURPHY APPLICANT
AND:	OVERTON INVESTMENTS PTY LIMITED RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	21 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The applicant pay the respondent’s costs of the proceedings.

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 159 OF 1999

BETWEEN:	JOHN JAMES MURPHY APPLICANT
AND:	OVERTON INVESTMENTS PTY LIMITED RESPONDENT
N 946 OF 1999
BETWEEN:	DAPHNE MURPHY APPLICANT
AND:	OVERTON INVESTMENTS PTY LIMITED RESPONDENT

JUDGE:	EMMETT J
DATE:	21 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 16 June 2000 I made orders in this matter for reasons that I published on 15 June 2000.  On 16 June 2000 I reserved the question of costs, since the matter was not without its complications, had been heard over a number of days and I had not given the parties the opportunity of being heard in relation to the question of costs. 

2. The principal order made on 16 June 2000 was that the application be dismissed.  In other words, the applicants failed in their claim for damages and for other relief in respect of alleged contraventions of the Trade Practices Act 1974 (Cth) (“the Trade Practices Act”) and breaches of duty owed under the general law.  I concluded that the applications should be dismissed notwithstanding findings that there had in fact been contravention of the Trade Practices Act by the respondent and breach of general law duty to take care in disclosing information.  The applicants contend that, in the light of those findings, I should deprive the respondent of what would normally be the usual order for costs where an application is unsuccessful. 

3. No suggestion has been advanced on behalf of the applicants that the conduct of the respondent has been unreasonable.  The applicants’ case in relation to contravention and breach of duty was based on conduct of the respondent through Mrs Patti Taylor in 1992.  As I indicated in my reasons of 15 June 2000, Mrs Taylor died in 1992 and, accordingly, her evidence was not available.

4. It is certainly true that not insignificant parts of the trial were devoted to the questions of whether or not there was conduct on the part of the respondent that was misleading and whether Mr and Mrs Murphy were induced by that conduct to enter into the lease.  I found that the conduct was misleading and that it induced Mr and Mrs Murphy to enter into the lease.  Nevertheless, the conduct of the respondent in the course of the proceedings did not add significantly, in my view, to the ultimate hearing time.  I do not consider that anything has been shown that would deprive the successful party of the order for costs that would normally follow the event.  Accordingly I consider it appropriate to order that the applicants pay the respondent’s costs of the proceedings.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            31 July 2000

Counsel for the Applicant:	Mr G A Moore
Solicitor for the Applicant:	The Aged Care Rights Service
Counsel for the Respondent:	Mr J C Kelly SC & Mr A J McInerney
Solicitor for the Respondent:	Gadens Lawyers
Date of Hearing:	21 July 2000
Date of Judgment:	21 July 2000