Paul Mitchell Systems (Australia) Pty Ltd v Paul Mitchell Systems (Australia) Pty Ltd

[1995] FCA 793

CATCHWORDS

COSTS  -  appeal dismissed as to costs  -  whether decision as to costs subject to any consequential orders by reason of orders made on appeal.

PAUL MITCHELL SYSTEMS (AUSTRALIA) PTY. LTD. V. PAUL MITCHELL SYSTEMS PTE. LTD. AND WALTER LAU LOKE LIM also known as LAU LOKE LIM and LOW LOKE LIM
WAG 158 OF 1993

FRENCH, LEE, COOPER JJ.
PERTH
6 OCTOBER 1995

IN THE FEDERAL COURT )
OF AUSTRALIA        )
WESTERN AUSTRALIA    )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO.  WAG 158 OF 1993

ON APPEAL FROM A DECISION OF A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N:           PAUL MITCHELL SYSTEMS (AUSTRALIA) PTY. LTD.

Appellant

and

PAUL MITCHELL SYSTEMS PTE. LTD.

First Respondent

and

WALTER LAU LOKE LIM also known as LAU LOKE LIM and LOW LOKE LIM

Second Respondent

MINUTE OF ORDER

THE COURT:      FRENCH, LEE, COOPER  JJ.

DATE OF ORDER:   6 OCTOBER 1995

WHERE MADE:     PERTH

THE COURT ORDERS THAT:

1. By consent, the sum of $20,000 paid into Court by the appellant as security for the costs of the appeal be paid out of Court:-

(a)to the first and second respondents' solicitors in satisfaction of the order for costs of the appeal after those costs have been taxed; and

(b)any balance then remaining to the appellant's solicitors.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT )
OF AUSTRALIA        )
WESTERN AUSTRALIA    )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO.  WAG 158 OF 1993

ON APPEAL FROM A DECISION OF A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

B E T W E E N:           PAUL MITCHELL SYSTEMS (AUSTRALIA) PTY. LTD.

Appellant

and

PAUL MITCHELL SYSTEMS PTE. LTD.

First Respondent

and

WALTER LAU LOKE LIM also known as LAU LOKE LIM and LOW LOKE LIM

Second Respondent

CORAM:    FRENCH, LEE, COOPER JJ.
DATE :    6 OCTOBER 1995
PLACE:    PERTH

REASONS FOR JUDGMENT

THE COURT:

On 21 July 1995 the Court determined the appellant's appeal in this matter by allowing it in part and otherwise dismissing it.  Pursuant to the orders made by the Court on 21 July 1995 the parties were given leave to present a minute of consequential orders made necessary by the result of the appeal.

Part of the order made by the Court was that the appellant pay two-thirds of the respondents' costs of the
appeal and it was agreed by the parties that there should be a consequential order that the sum of $20,000 paid into Court by the appellant as security for the costs of the appeal be paid out of Court to the respondents' solicitors in satisfaction of that order for costs after the costs have been taxed and any balance remaining be paid out of Court to the appellant's solicitors.

The appellant seeks a further order that the learned primary Judge's order as to the costs of the action be varied in the terms set out in the appellant's notice of appeal.  The parties filed submissions in writing in respect of the order proposed by the appellant.  The Court has considered those submissions and does not require the parties to present any further oral argument in respect of the issue.

The appellant submitted that the order of the Court reversing the finding of the learned primary Judge that the terms pleaded by the respondent in paras.10 and 17.1 of its defence were implied terms of the contract between the appellant and the respondent, necessitated a further order by this Court varying his Honour's order as to costs.

In the course of the hearing of the appeal counsel for the appellant acknowledged that unless the appellant succeeded in its primary contention on the appeal, that the respondents had made various representations intended to be of a contractual nature, the reversal of the findings of his Honour on the implied terms would have no bearing on the outcome of the case.  It was conceded that if his Honour's answers to the other questions remained undisturbed the order dismissing the appellant's application must stand.

The order for costs made by his Honour was intended to be a single provision, moulded to suit the circumstances of the case, to dispose of all issues in respect of costs arising out of the litigation.  That order reduced by 2½% the costs the respondents were otherwise entitled to recover as the successful litigants in the application.  The appellant contends now that the reduction would have been greater if his Honour had not found in the respondents' favour upon the answer to the question relating to implied terms.

We do not agree that his Honour's order in respect of costs is subject to any consequential order by reason of the orders made on the appeal.  To the contrary, the separate reasons of the Court show quite clearly that it was the conclusion of the Court that his Honour did not err in the order he made as to costs and that the appeal in that respect was to be dismissed.

In any event, the question of implied terms was a matter to be dealt with in the course of dealing with other questions put to his Honour for answer.  Quite apart from the peripheral importance of the answer to the question relating to implied terms, the treatment of that question was not easily severable as to time and effort to permit his Honour to make a greater reduction of the costs recoverable by the respondents if he had found that the implied terms which the respondents sought to rely upon in their cross-claim were not available.

His Honour's order for costs was concerned not only with the costs of the hearing of the separate questions but with the costs of the application as a whole, and for the reasons that have already been stated by the Court no ground was shown on the appeal to disturb that order.

There will be an order in respect of the monies paid into Court for security of the costs of the appeal that the monies be paid out of Court as agreed by the parties.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of the Court.

Associate:
              Date:

APPEARANCES

Counsel for the Appellant:      D.H. Solomon
Solicitors for the Appellant:    Solomon Brothers

Solicitors for the First and
Second Respondents:             Parker & Parker as agents for
  Allen Allen & Hemsley

Date of Judgment :  6 October 1995