Radferry Pty Ltd v Starborne Holdings Pty Ltd

[1999] FCA 171

FEDERAL COURT OF AUSTRALIA

Radferry Pty Ltd v Starborne Holdings Pty Ltd [1999] FCA 171

RADFERRY PTY LTD & ANOR v STARBORNE HOLDINGS PTY LTD & ORS
QG 37 of 1998

COOPER, MARSHALL, DOWSETT JJ

2 MARCH 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 37 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

RADFERRY PTY LTD (A.C.N. 011 018 867)
First Appellant

LOUIS ZENONOS, SAM ZENONOS AND JOHN ZENONOS
Second Appellants

AND:

AND
BETWEEN:

AND:

STARBORNE HOLDINGS PTY LTD (A.C.N. 071 108 453)
Respondent

STARBORNE HOLDINGS PTY LTD (A.C.N. 071 108 453)
Cross-Appellant

RADFERRY PTY LTD (A.C.N. 011 018 867)
First Cross-Respondent

LOUIS ZENONOS, SAM ZENONOS AND JOHN ZENONOS
Second Cross-Respondents

JUDGES:

COOPER, MARSHALL & DOWSETT JJ

DATE OF ORDER:

2 MARCH 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The orders as to costs made on 18 December 1998 stand.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 37 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

RADFERRY PTY LTD (A.C.N. 011 018 867)
First Appellant

LOUIS ZENONOS, SAM ZENONOS AND JOHN ZENONOS
Second Appellants

AND:

AND
BETWEEN:

AND:

STARBORNE HOLDINGS PTY LTD (A.C.N. 071 108 453)
Respondent

STARBORNE HOLDINGS PTY LTD (A.C.N. 071 108 453)
Cross-Appellant

RADFERRY PTY LTD (A.C.N. 011 018 867)
First Cross-Respondent

LOUIS ZENONOS, SAM ZENONOS AND JOHN ZENONOS
Second Cross-Respondents

JUDGES:	COOPER, MARSHALL & DOWSETT JJ
DATE:	2 MARCH 1999
PLACE:	BRISBANE

SUPPLEMENTARY REASONS FOR JUDGMENT

THE COURT:

1. On 18 December 1998 the Court published its reasons for allowing the appeal and cross-appeal in this matter.  For present purposes it is relevant to note only that the second appellants, Louis Zenonos, Sam Zenonos and John Zenonos (the “Radferry directors”) had appealed against the award of damages against them in favour of Starborne Holdings Pty Ltd (“Starborne”) in the amount of $174,268.47 with interest.  By the cross-appeal Starborne asked that this Court set aside certain findings of fact made by the learned trial judge and increase the award against the Radferry directors to an amount in the order of $290,000.  The Court reduced the award to $90,000 plus interest.  In giving judgment we proposed that Starborne should pay the Radferry directors’ costs of the appeal and cross-appeal.  However, as the parties had not had an opportunity to make submissions as to costs, we gave leave to deliver written submissions.  Starborne made submissions resisting the proposed order and the Radferry directors responded thereto.

2. In effect, Starborne submitted that it was not responsible for the errors made by the learned trial Judge.  It submitted that it had led the evidence upon which this Court acted in fixing quantum, possibly implying that at first instance, it had advanced an appropriate basis for calculating damages.  It also pointed out that the Radferry directors had asserted by their notice of appeal that there was…