Newington, Jean Edelweiss Alaine & Ors v Beneficial Finance Corp Ltd Newingtion, Jean Edelweiss Alaine & Ors v Beneficial Finance Corp Ltd

[1996] FCA 740

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
NEW SOUTH WALES DISTRICT REGISTRY  )
GENERAL DIVISION  )                  Nos. NG 213/90
  NG 234/93

Matter No. NG 213 of 1990

BETWEEN:JEAN EDELWEISS ALAINE NEWINGTON

First Applicant

JACQUES BONNET

Second Applicant

GENMAN PTY LIMITED

Third Applicant

AND:BENEFICIAL FINANCE CORPORATION LIMITED

Respondent

Matter No. NG 234 of 1993

BETWEEN:JEAN EDELWEISS ALAINE NEWINGTON

First Applicant

JACQUES BONNET

Second Applicant

GENMAN PTY LIMITED

Third Applicant

AND:BENEFICIAL FINANCE CORPORATION LIMITED

Respondent

CORAM:Lehane J

PLACE:Sydney

DATE:19 August 1996

EXTEMPORE REASONS FOR JUDGMENT

LEHANE J:  This is fortunately rather an unusual state of affairs with which I am confronted.  Costs are sought for legal work done and appearances by leave in respect of a foreshadowed application for costs against the applicants' legal representatives in
relation to certain aspects of these proceedings.  The foreshadowing of the application gave rise in turn to circumstances which led the applicants to seek a substantial adjournment.  In those circumstances the foreshadowed application for costs was withdrawn on the footing that the proceedings, that is the principal proceedings between the applicants and the respondent, proceed this week.

The question now is as to the extent to which, if at all, I should make an order against the respondent for the costs incurred by the applicants' legal representatives in respect of the proceedings before me this morning, or in respect of work done during the last few days since, by a letter of 15 August 1996 which is before me, senior counsel for the respondent foreshadowed the application to senior counsel for the applicants.

I think that Mr Morris must be right when he submits that given the form that these proceedings take it may be beyond power, and certainly it would be unusual, to make an order at this stage for costs incurred in relation to work done by way of advice on the foreshadowed application.  I would not be disposed to make an order in relation to those costs.  That leaves the appearances.  Counsel and solicitors for all three of the applicants' legal representatives have sought the costs of their appearance this morning.

In ordinary circumstances where an application is made and then withdrawn I have no doubt that the usual order would be that costs follow the event, so that the party making the application and then withdrawing it would pay the costs of the other parties.  This matter is in my view somewhat more complicated than that.  For one thing, as Mr Morris
has I think correctly pointed out, the withdrawal was not unconditional but clearly conditional upon a foreshadowed adjournment application not proceeding.

I have been assisted by submissions on behalf of the applicants' legal representatives.  However, agreement had apparently been reached that the foreshadowed application would not be made this morning and that the substantial matter before the Court would simply be an application for an adjournment; there was no specific notification, to those representing the respondent, that there was a serious prospect of the applicants being left this morning without representation.

The respondents could, therefore, justifiably have been surprised by the appearance of three sets of legal representatives for the three lawyers concerned and a good deal of what took place this morning probably did not need to take place in the way in which it did.  That, I am afraid, puts the matter not with the utmost elegance.  I was tempted to reserve the question of costs because I could see some force in Mr Morris's alternative submission, that there were matters arising in the main proceeding which might, in due course, affect the exercise of my discretion as to the costs of the foreshadowed application.  In the end, however, I think it is undesirable to leave this matter undetermined and in all the circumstances my view is that the appropriate course is that I make no order as to costs.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:  19 August 1996

Heard:  19 August 1996

Place:  Sydney

Decision:  19 August 1996

Appearances:  Mr R J Burbidge QC and Ms S York of counsel instructed by Moray & Agnew appeared for Mr D B Milne QC.

Mr F R Lawson of Corrs Chambers Westgarth appeared for Mr J A Waters.

Mr W J Hawson of Colin Biggers & Paisley appeared for Stojanovic & David.

Messrs A J H Morris QC and M G Skinner of counsel instructed by R B Monteith & Co appeared for the respondent in proceedings NG 213 of 1990 and NG 234 of 1993.