NZI Capital Corporation Ltd v Poignand, R.J

[1994] FCA 852

8 ~ 2 ~ 9~

JUDGMENT No. ..... , . , . . , ,

HOT FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY	No NG 620 of 1992
GENERAL DIVISION

BETWEEN :

NZ1 CAPITAL CORPORATION LIMITED

Applicant

AND :

ROGER JAWES POIGNAND & ORS

~espondents

C O W :	SACKVILLE J.
PLACE :	SYDNEY

16 NOV 1994

DATE :  11 NOVEMBER 1994

AUSTRALIA PRINCIPAL REQISTRV

ONS F0 R JUDGMENT

HIS HONOUR: In this matter an application has been made for the costs of what I would describe as the Fulton interests in connection with the motion brought by NZ1 Capital Corporation Ltd. In that motion NZ1 Capital Corporation Ltd sought orders that proceedings No. NG 620 of 1992 (the guarantee proceedings) and proceedings No. NG 397 of 1992 (the representative proceedings) be heard together. I dismissed that motion in a judgment that was delivered on 25 October 1994 and I do not repeat what is said in that judgment. The effect of it, however, was that the F u ~ ~ o n i terests were excusea rrom the further conduct of what has been described as the representative proceedings. Indeed, it is more accurate to say that the Fulton

interests have not been a party to those proceedings, since they

L

had opted out at an earlier stage

While the ordinary rule is that costs would follow the event and while it is true that the motion filed by Mr Jacobson on behalf of NZ1 Capital Corporation Ltd failed, I do think that there are other circumstances that in this case warrant the cost being costs in the guarantee proceedings. The reason I take that view is that the litigation as a whole, by which I mean the representative proceedings and the guarantee proceedings, is of considerable complexity. There were very difficult procedural issues that needed to be resolved in the light of the Full Court's decisions in these matters. It was, I think, an appropriate course for Mr Jacobson's clients to bring both proceedings before the court with a suggestion that all matters be dealt with together.

Although in the end I have decided for the reasons given in the judgment of 25 October 1994 not to take the course suggested by

Mr Jacobson, nonetheless I think it was appropriate to have all

parties before the court. By that I mean that it was appropriate that the parties to the guarantee and representative proceedings	should be before the Court in order that the procedural issues
might be ventilated and a course for the orderly conduct of the litigation decided upon. Indeed, it would have been very difficult to resolve all procedural questions without all parties being present, including those who had opted out of the representative proceedings.
In those circumstances I think that the preferable course is to regard the costs as costs in the guarantee proceedings and I make that order.

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

Associate: / - J4 F-4 '

Dated: 16 November, 1994

Heard:	11 November, 1994
Place:	Sydney
Decision:	16 November, 1994
Appearances:	Mr Fai of Rocklif f s , Solicitors, appeared on behalf of the applicant in the application for costs.
Mr Jacobson instructed by Holmes and Bevan,
Solicitors, appeared on behalf of the respondent in the application for costs.