National Auto Glass Supplies (Australia) Pty Limitedv Nielsen and Moller Autoglass (NSW) Pty Limited (No 6)

[2007] FCA 570

FEDERAL COURT OF AUSTRALIA

National Auto Glass Supplies (Australia) Pty Limited v Nielsen & Moller Autoglass (NSW) Pty Limited (No 6) [2007] FCA 570

NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342, MAGGIE YEUNG LO AND HARVEY HUI OUYANG v NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595, JACK J MOLLER AND CARL MOLLER
NSD 2596 OF 2005

GRAHAM J
13 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2596 OF 2005

BETWEEN:

NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342
First Applicant

MAGGIE YEUNG LO
Second Applicant

HARVEY HUI OUYANG
Third Applicant

AND:

NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595
First Respondent

JACK J MOLLER
Second Respondent

CARL MOLLER
Third Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	13 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The second respondent pay the applicants’ costs of the second respondent’s application which effectively occupied the whole of the hearing time before 1:00 pm today.

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	NSD 2596 OF 2005

BETWEEN:

NATIONAL AUTO GLASS SUPPLIES (AUSTRALIA) PTY LIMITED ACN 081 814 342
First Applicant

MAGGIE YEUNG LO
Second Applicant

HARVEY HUI OUYANG
Third Applicant

AND:

NIELSEN & MOLLER AUTOGLASS (NSW) PTY LIMITED ACN 107 721 595
First Respondent

JACK J MOLLER
Second Respondent

CARL MOLLER
Third Respondent

JUDGE:	GRAHAM J
DATE:	13 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. What is presently before the Court is an application for costs made by the applicants in respect of what proved to be a successful application by the second respondent to be excused from giving further evidence in the case.  As mentioned in the reasons for judgment on the application itself, the application was an unusual and challenging one.

2. In the result the second respondent was successful.  I have been invited by counsel for the applicants to treat the application as one akin to an application to vacate a hearing date where, notwithstanding success, it is not uncommon to find that the costs of the successful application are ordered to be paid by the applicant rather than by the unsuccessful respondent who may have resisted the application.

3. No notice whatsoever was given by the second respondent of his intended application today.  He was in the witness box in December 2006 when the proceedings were adjourned as a result of an episode affecting his health.  The hearing resumed yesterday and the second respondent did not appear.  He did not pay the Court or the applicants the courtesy of informing them of his intentions in relation to his future appearance and it was not until he announced his appearance today that he informed the Court that he did not intend to go into the witness box again and that he sought to be excused from the requirement that he would otherwise be under to do so.

4. It is clear that this is a case where the applicants should be protected in relation to the costs of the application which they have incurred. 

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

Associate:

Dated:         20 April 2007

Counsel for the Applicants:	S M Littlemore QC and A A Henskens
Solicitors for the Applicants:	Robert Yip & Co
The first respondent did not appear
The second respondent appeared in person, but withdrew before the hearing of the costs application.
The third respondent appeared in person
Dates of Hearing:	4, 5, 6, 7, 8, 11, 12, 13, 14 December 2006, 12 and 13 April 2007
Date of Judgment:	13 April 2007