T.N. Lucas Pty Ltd v Centrepoint Freeholds Pty Ltd

[1984] FCA 64

Re: T.N. LUCAS PTY. LTD.
And: CENTREPOINT FREEHOLDS PTY. LTD.
VG No. 188 of 1981
Payment into Court - Practice and Procedure
52 ALR 467 / 1 FCR 371

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)

CATCHWORDS

Payment into court - notice of deposit - validity of notice - cause of action - claim to damages - claim to relief.

Payment into court - discretion of court as to costs.

FEDERAL COURT RULES - Order 23 - Rules 1, 2, 6, 7, 10, 11, 16. Order 62 - Rule 27 Form 31

Practice and Procedure - Costs - Payment into Court - Notice of Deposit - Non-compliance with Rules - Validity - Discretion of Court as to costs - Federal Court Rules 1979 (Cth), O. 23, rr.1, 2, 6, 7, 10, 11, 16, O. 62, r. 7.

HEADNOTE

On the first day of the trial of an action the respondent paid into court the sum of $65,000. The notice of deposit filed and served pursuant to O. 23 of the Federal Court Rules was expressed to be "in answer to all causes of action and all breaches alleged which the applicant claims". Several causes of action including claims for damages were alleged. The trial judge had published reasons for his conclusion that there should be judgment for the applicant for damages in the sum of $51,431.16. The applicant moved for an order that the respondent pay its taxed costs of the proceedings alleging primarily that the notice of deposit failed to comply with the requirements of O. 23 of the Rules in that it included the words "and all breaches alleged", which are not to be found in Form 31 of the prescribed form.

Held: (1) The expression "causes of action" in Form 31 of the first schedule to the Federal Court Rules must be assigned the meaning defined in O. 23, r. 1 viz. causes of action for the recovery of debt or damages.

(2) The meaning of the words "and all breaches alleged" in the notice of deposit was uncertain, although one possible interpretation was that they constituted a proposal concerning the money referred to therein inconsistent with the provisions of O. 23. Accordingly, the notice of deposit was so seriously lacking in compliance with the requirements of O. 23 that it was invalid and ineffective for the purposes thereof.

Prior v. Lansdowne Press Pty Ltd (1977) V.R. 65 at 76; Young v. Black Sluice Commissioners (1909) 73 J.P. 265 at 266; Schulte-Hordelhoff v. Patons Brake Replacements Pty Ltd (1965) V.R. 369 at 371, referred to.

(3) In the circumstances the occasion had not arisen for the exercise of the court's discretion as to costs in accordance with the practice that a respondent whose payment into court under O. 23 exceeds the amount for which judgment is given is awarded his costs incurred after the date of payment into court.

(4) Notwithstanding these conclusions, money had been brought into court and O. 62, r. 27(2) authorises the court to take that fact and the amount thereof into account in exercising its discretion as to costs. However where a respondent substantially fails to comply with the Rules, as in the instant situation, it is inappropriate that an applicant be deprived of costs incurred after money has been paid into court for failure to recover more than that amount, if it might reasonably have been perceived that there was a substantial possibility that he might have done so.

Prior v. Lansdowne Press Pty Ltd (1977) V.R. 65 at 77-78; Schulte-Hordelhoff v. Patons Brake Replacements Pty Ltd (1965) V.R. 369 at 371, referred to.

(5) There was, accordingly, no cause for any order but that costs follow the event.

(6) It was inappropriate, in the circumstances, to order that moneys paid into court be made available to the applicant to satisfy judgment or the order for costs.

Prior v. Lansdowne Press Pty Ltd (1977) V.R. 65, not followed.

HEARING

Melbourne, 1983, May 9-13, 16-20; June 14, 17; July 4, 5; October 10; 1984, February 3, 15; March 7, 14, 30. #DATE 30:3:1984

MOTION.

Motion by the applicant for an order that the respondent pay its taxed costs of the proceedings where the applicant had not accepted a payment into court under O. 23 of the Federal Court Rules 1979 (Cth).

E. D. Lloyd Q.C. and P. J. Kennon, for the applicant.

A. H. Goldberg and R. A. Finkelstein, for the respondent.

Cur. adv. vult.

Solicitors for the applicants: Muir, Williams & Nicholson.

Solicitor for the respondents: T. A. Sherman, Acting Commonwealth Crown Solicitor.

T.J.G.

ORDER

Upon the respondent by its counsel undertaking that it will not by any means seek to recover from the applicant or any surety for the applicant any part of the cost of providing in 1978 three phase electric power or sprinkler systems or fire prevention installations or plumbing installations in the premises designated as shops B.01 and B.02 in the amended statement of claim filed on 19 October 1982 or any sum in respect of the applicant's tenancy or occupation of the said premises during October or November or December 1978 or during January 1979 before 26 January 1979 IT IS ORDERED AND ADJUDGED that the applicant recover against the respondent $51,431.16 AND IT IS ORDERED that the applicant's costs of the proceeding (including costs reserved) be paid by the respondent AND IT IS ORDERED that the sum of $65,000 brought into Court be paid out to the respondent's solicitors.

Orders accordingly.

JUDGE1

On 3 February 1984 I published reasons for my conclusion that in this proceeding there should be judgment for the applicant for damages in the sum of $51,431.16. Judgment has not yet been pronounced. On 15 February 1984 counsel for the parties disclosed that on 9 May 1983, the day on which the trial of the proceeding began, the respondent paid into court the sum of $65,000, filed a notice of deposit in respect of the payment and served the notice on the applicant. The applicant has not accepted the money, but has moved for an order that the respondent pay its taxed costs of the proceeding.

The primary submission in support of the applicant's motion for costs was that the notice of deposit did not comply with the requirements of Order 23 of the Federal Court Rules.

The notice of deposit is in these terms:

"The Respondent has this day paid into Court the sum of $65,000.

That sum is in answer to all causes of action and all breaches alleged upon which the Applicant claims."

Order 23 includes the following provisions:

"1. In this Order, unless the context or subject matter otherwise indicates or requires -

'cause of action' means a cause of action for the recovery of debt or damages; and

'trial' includes the hearing of a motion for judgment.

2. (1) A respondent may from time to time -

(a) bring money into Court in answer to any one or more causes of action on which an applicant claims; and

(b) bring money into Court in addition to money previously brought in under this rule.

(2) A respondent may bring money into Court under this Order by paying the money into Court or by filing a security in accordance with rule 15.

. . . . . . . . . . . . . . . . . . . . . .

6. (1) On bringing money into Court under this Order, the respondent shall file a notice of deposit in accordance with Form number 31 in the First Schedule.

(2) Where an applicant claims on two or more causes of action and a respondent brings money into Court under this Order, the respondent shall, in his notice of deposit -

(a) specify the cause or causes of action in answer to which the money is brought in; and

(b) if the respondent allots part of the money to any cause or causes of action, specify the amount of that part and the cause or causes of action to which he allots that part.

7. Where, before the beginning of the trial, a respondent brings money into Court or allots money under this Order in answer to two or more causes of action, the Court may order the respondent specifically to allot the money amongst the various causes of action and to file an amended notice of deposit accordingly.

. . . . . . . . . . . . . . . . . . . . . . . . . .

10. (1) An applicant may, within the time fixed by sub-rules (2), (3) and (4), accept money brought into Court in satisfaction of the cause of action in answer to which the money is brought in, as against the respondent bringing the money into Court.

(2) Where the notice of deposit or last notice of deposit, in answer to a cause of action is filed before the beginning of the trial, the applicant may accept the money in satisfaction of the cause of action within 14 days after service on him of the notice of deposit, or last notice of deposit, but before the beginning of the trial, by filing a notice of acceptance in the prescribed form.

(3) Where the notice of deposit, or last notice of deposit in answer to a cause of action is filed after the beginning of the trial, or a respondent, by notice served on the applicant after the trial begins, confirms, a notice of deposit, the applicant may, subject to sub-rule (4), accept the money in satisfaction of the cause of action within two days after service on him of the notice or the last notice, by announcement to the Court during the trial or by filing a notice of acceptance.

(4) An applicant shall not accept money in a case to which sub-rule (3) applies -

(a) where the trial is before a jury - after the Judge begins to sum up to the jury; or

(b) in any other case - after the Judge gives his decision or begins to give his reasons for decision.

(5) A respondent who serves notice of confirmation under sub-rule (3) shall file the notice on the day of service.

(6) An applicant who accepts money by announcement to the Court under sub-rule(3) shall file a notice of acceptance in the prescribed form on the day of the announcement.

(7) Where an applicant claims on more than one cause of action and he accepts money brought into Court in answer to some one or more but not all of the causes of action, he may, by filing a notice (which may be combined with his notice of acceptance), abandon all his causes of action other than the cause of action to which the acceptance relates.

(8) Where an applicant claims against two or more respondents on a cause of action against them jointly, and he accepts money brought into Court by one or more but not all of those respondents in answer to that cause of action, he may, by filing a notice (which may be combined with his notice of acceptance), abandon his cause of action against the other or all the others of those respondents.

(9) A notice of acceptance shall be in accordance with the form numbered 33 in the First Schedule.

(10) An applicant who accepts money under this rule shall, subject to rule 13, be entitled to receive payment of the money without any order.

11. (1) On an applicant accepting money under rule 10 in satisfaction of a cause of action as against any respondent bringing money into Court, the proceeding shall be stayed in relation to -

(a) that cause of action, as against that respondent;

(b) any alternative cause of action against that or any other respondent;

(c) any cause of action abandoned under sub-rule 10 (7) or sub-rule 10 (8); and

(d) where the respondent, in bringing the money into Court, has taken into account a cause of action on a cross-claim by him as mentioned in rule 8, that cause of action on the cross-claim as against the applicant.

(2) Where a respondent brings money into Court in answer to a cause of action, and the applicant accepts the money in satisfaction of the cause of action as against that respondent the liability of any other person (whether a party to the proceeding or not) jointly with that respondent on the cause of action -

(a) shall be satisfied in the amount of the money accepted; but

(b) shall not be discharged by the acceptance except to the extent of that satisfaction.

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

16. A party filing a notice under this Order shall, on the day of filing, serve the notice on each other party on whom the notice has not previously been served."

Form number 31 in the First Schedule reads thus:

"NOTICE OF DEPOSIT

(Order 23, rule 6)

The respondent has paid (filed a security to pay) into Court $

That sum is in answer to the cause of action (all the causes of action) on which the applicant claims (and after taking into account this respondent's cause of action (for (specify)) on his cross-claim).

or

That sum is in answer to the following causes of action on which the applicant claims, namely -

(and after taking into account as above).

or

Of that sum $ is in answer to the cause of action for (specify) on which the applicant claims (and after taking into account as above) and $ is in answer to the cause of action for (specify) on which the applicant claims (and after taking into account as above)."

Order 62 Rule 27 provides:

"27. (1) Where, pursuant to Order 23, an applicant before the trial or hearing begins -

(a) accepts money brought into Court by a respondent in answer to a cause of action;

(b) abandons that cause of action as against all other respondents (if any) sued on that cause of action jointly with the respondent bringing the money into Court; and

(c) abandons all his other causes of action (if any),

then, after payment out, he may, unless the Court otherwise orders, tax his costs of the proceedings in respect of his claims for relief against the respondent bringing the money into Court, incurred before service of notice of the deposit of the money accepted and, if the costs are not paid within 4 days after the signing of a certificate of the taxation, enter an order for the payment by that respondent of the taxed costs.

(2) Where a party has brought money into Court, the Court may, if exercising its discretion as to costs, take into account that fact, and the amount of the money brought into Court."

As appears from the reasons already published, several causes of action were alleged by the applicant. The claims for relief specified in the application are set out in paragraph 20 of those reasons. The amended statement of claim filed on 19 October 1982, to which reference is made in that paragraph, was in these terms:

"1. Each of the applicant and the Respondent is and was at all material times -

(a) a company duly incorporated in accordance with the laws of the State of Victoria;

(b) a trading corporation formed within the limits of Australia.

2. At all material times one Craig Robertson acted as a servant and/or agent of the respondent in relation to the leasing and proposed leasing of the shops by the Respondent to tenants at the Centrepoint Mall, Bourke Street, Melbourne (hereinafter called 'Centrepoint Mall').

3. By a deed dated the 16th day of May 1979 made between the applicant as Lessee and the respondent as Lessor ('the lease') the respondent agreed to lease the shops known as B.01 and B.02 at the Centrepoint Mall to the applicant for a term of 4 years with an option to renew for a further 4 years at an initial rental of $27,680-00 per annum for the purpose of conducting a bakery and cake shop therefrom.

4. In order to induce the applicant to make and enter into the lease, the respondent represented to the applicant and in consideration of it doing so warranted that:

(a) the Centrepoint Mall would be open for trading in June 1979;

(b) there would be only one bakery and cake shop in the Centrepoint Mall;

(c) Shops B.01 and B.02 were the only shops in the Centrepoint Mall specially designed for use as a bakery and cake shop in a manner which complied with all health and building requirements;

(d) Shops B.01 and B.02 had been specially designed and did comply with -

(i) all relevant building regulations;

(ii) all relevant health regulations; and

(iii) all other relevant municipal so as to enable the applicant to use the said Shops for the purpose of conducting a bakery and cake shop for the duration of its lease and any renewal thereof;

(e) the applicant's proposed occupation and use of the Shops was lawful and would remain lawful for the duration of the lease and any renewal thereof.

(f) The shops initially requested by the applicant being Shops B.30 and B.07 were not available to the applicant because only Shops B.01 and B.02 had been specially designed for a bakery and in any event they had already been leased to Gilbertsons butchers.

(g) Shops B.21 and part of B.22 had already been leased to Macdonalds.

(h) the shops already leased in the basement included:

(i) a continental delicatessen;

(ii) a fruit shop;

(iii) a fresh fish shop;

(iv) a large number of shops each selling food from various countries;

(i) the respondent would provide free of charge to the applicant three phase power at Shops B.01 and B.02 to enable the running of heavy duty plant and equipment;

(j) the respondent would provide free of charge to the applicant all necessary sprinkler systems and other fire prevention installations at Shops B.01 and B.02 as required by the Metropolitan Fire Brigade;

(k) the respondent would provide free of charge to the applicant all necessary plumbing installations to Shops B.01 and B.02 to enable the applicant to conduct a bakery and cakeshop therefrom;

(l) the initial rental payable by the applicant in respect of Shops B.01 and B.02 would be $27,680.00 per annum;

(m) the said initial rental would not be increased for a period of 2 years from the commencement date;

(n) in addition to the rental payable under the lease, the only other costs and charges the applicant had to pay were -

(i) MMBW rates in respect of Shops B.01 and B.02;

(ii) Council rates in respect of Shops B.01 and B.02;

(iii) Merchant's Association annual subscription;

(iv) the respondent's legal costs and stamp duty in respect of the lease;

(o) Clauses 6.02 and 6.03 of the lease would not be relied upon by the respondent;

(p) the basement would be divided into shops in the manner indicated in the plan annexed to the lease save that the front wall of Shops B.01 and B.02 would extend in a straight line parallel to Masons Lane from the south-eastern corner to the wall abutting Bourke Street;

(q) there would be a U-shaped Mall leading into the main Mall in the basement thus surrounding Shops B.11, B.10, B.08, B.07, B.30, B.29, B.28 and B.27 in the manner indicated in the plan annexed to the lease;

(r) there would be a walkway directly opposite Shops B.01 and B.02 running between the stairs and shops B.30 and B.07;

(s) the escalators between the ground floor and the basement would be wider than standard escalators;

(t) shops B.01 and B.02 would be visible to the 170,000 people who walked down Bourke street each day.

(u) there would be open space below the escalators;

(v) there would be clear visual and pedestrian access from walkway referred to in sub-paragraph (r) hereof through the open space below the escalators referred to in sub-paragraph (u) hereof to Shops B.01 and B.02;

PARTICULARS

The representations were partly in writing, partly oral and partly to be implied. Insofar as they were in writing, they were contained in :

(a) a floor plan of the basement handed to one Ttoollis Lucas on behalf of the applicant by one Craig Robertson as agent for the respondent;

(b) a floor plan of the basement annexed to the lease;

(c) a brochure handed by the said Robertson to the said Lucas;

(d) letters sent by Centrepoint Custodian Pty. Ltd., for and on behalf of the respondent to the said Vasiliki Lucas and Ttoollis Neophytou Lucas for and behalf of the applicant dated;

(i) the 26th October, 1978

(ii) the 14th December, 1978

(iii) the 2nd February, 1979.

(e) an advertisement on page 98 of the issue of the Age newspaper published on the 9th December, 1978 and an advertisement in the issue of the Herald newspaper published on the 30th September 1978.

Insofar as the representations were oral they were made by the said Craig Robertson to the said Ttoollis Lucas in the course of several meetings and telephone conversations between them in relation to the proposed letting by the applicant of Shops B.01 and B.02 at the Centrepoint Mall between the months of October 1978 and May 1979 the substance of which is as set out above.

Insofar as they were implied they were implied by the information set out in the said letters and plans, from the said conversation, and from the agreement by the respondent to lease the said shops to the applicant for the term and purpose described in paragraph 3 hereof, and for the failure and omission of the respondent to withdraw or modify any of the representations before the date on which the applicant executed and delivered the said deed to the respondent.

5. The applicant has discovered and the fact is that each of the said representations was false and untrue and each of the said warranties broken in that;

(a) the Centrepoint Mall was not open for trading in June 1979;

(b) there was more than one bakery and cake shop in the Centrepoint Mall;

(c) Shops B.01 and B.02 were not specially designed for use as a bakery and cake shop in a manner which complied with all health and building regulations;

(d) Shops B.01 and B.02 were not specially designed to and did not comply with -

(i) all relevant building regulations;

(ii) all relevant health regulations;

(iii) all other relevant municipal and statutory requirements

so as to enable the applicant to lawfully use its said shops for the purpose of conducting a bakery and cake shop for the duration of the lease and any renewal thereof;

(e) the applicant's proposed occupation and use of the shops was not lawful at any time whilst it was in occupation of the said shops;

(f) the shops initially requested by the applicant being Shops B.30 and B.07 were available to the applicant because Shops B.01 and B.02 had not been specially designed for a bakery, and in any event Shops B.30 and B.07 had not been let to Gilbertsons butchers;

(g) Shops B.21 and part of B.22 had not been leased to MacDonalds;

(h) the shops already leased in the basement did not include -

(i) a continental delicatessen;

(ii) a fruit shop:

(iii) a fresh fish shop;

(iv) a large number of shops each selling foods from various countries.

(i) the respondent did not provide free of charge to the applicant three phase power to Shops B.01 and B.02;

(j) the respondent did not provide free of charge to the applicant the necessary sprinkler system and other fire prevention installations as required by the Metropolitan Fire Brigade to Shops B.01 and B.02;

(k) the respondent did not provide free of charge to the applicant all necessary plumbing installations to Shops B.01 and B.02 to enable the applicant to conduct a bakery and cakeshop therefrom;

(l) the initial rental charged by the respondent to the applicant in respect of Shops B.01 and B.02 was in excess of $27,680.00 per annum;

(m) the said initial rental was increased at a time earlier than two years from the commencement date;

(n) in addition to the additional costs described in paragraph 4(n) hereof the applicant was required to pay apportionable outgoings as described in the lease;

(o) the respondent has sought to rely on clauses 6.02 and 6.03 of the lease;

(p) the basement was not divided into shops in the manner indicated in the plan annexed to the lease save for the front wall of Shops B.01 and B.02 extending in a straight line parallel to Masons Lane from the south eastern corner to the wall abutting Bourke Street;

(q) there was not a U-shaped Mall leading into the main Mall thus surrounding Shops B.11, B.10, B.08, B.07, B.30, B.29, B.28 and B.27 in the manner indicated on the plans annexed to the first lease and the second lease;

(r) there was not a walkway directly opposite Shops B.01 and B.02 running between the stairs and Shops B.30 and B.07;

(s) the escalators between the ground floor and the basement were not wider than standard escalators;

(t) shops B01 and B02 were not visible to anybody walking down Bourke Street;

(u) there was not open space below the escalators;

(v) there was not clear visual and pedestrian access from the walkway referred to in sub-paragraph (r) of paragraph 4 through the open space below the escalators referred to in sub-paragraph (u) of paragraph 4 to Shops B.01 and B.02.

6. Each of the representations made as aforesaid were made by the respondent in the course of the respondent's trade or commerce and were made in connection with the grant or possible grant of an interest in land as defined by Section 53A of the Trade Practices Act 1974.

PARTICULARS

Each of the said representations was made either by the respondent by itself, or by its agent Robertson. Alternatively, the said representations were made by the said Robertson acting as a servant or agent of the respondent and/or by the direction or with the consent or agreement (both express and implied) of a director and/or agent of the respondent and as such were deemed by Section 84(2) of the Trade Practices Act 1974 to have been conduct engaged in by the respondent.

7. The making of the said representations as aforesaid by the respondent -

(a) constituted conduct by the respondent that was misleading or deceptive and/or was likely to mislead or deceive in contravention of the provisions of Section 52 of the Trade Practices Act 1974;

(b) constituted false representations that services to be provided were of a particular standard quality or grade in contravention of the provisions of Section 53(aa) of the Trade Practices Act 1974;

(c) constituted false or misleading statements concerning the characteristics of land the use to which it was lawfully capable of being put and/or the availability of facilities associated with land in contravention of the provisions of Section 53A of the Trade Practices Act 1974.

PARTICULARS

The applicant refers to and repeats the allegations set out in paragraphs 4 and 5 hereof.

8. Acting on the faith and truth of the said representations and warranties induced thereby, the applicant made and entered into the said Deeds and became a tenant of the said shops and paid rent to the respondent for the use and occupation of the said shops.

9. The respondent made the said representations fraudulently and either well knowing that they were false and or true or recklessly not caring whether they were true or false.

10. (a) Further and in the alternative at the time of the making of the said representations the respondent and its said agent intended and well knew or ought to have known that the applicant would rely on the said representations and would be induced thereby to enter into the deeds described in paragraph 3 hereof.

(b) In the premises the respondent and its said agent were under a duty to take care in the making of the said representations.

(c) Acting on the faith of the said representations and induced thereby the applicant entered into the said deed.

(d) In breach of the said duty the respondent and its said agent were guilty of negligence in making the said representations.

PARTICULARS

(i) Failing to take any or any proper steps to ascertain the truth of the representations.

(ii) Making the representations without any or any proper investigation or verification of the information on which they were based.

(iii) Failing to obtain all the necessary and proper information in relation to the matters the subject of the representations.

(iv) Making the representations without any or any proper regard to their correctness or accuracy.

(v) Failing to take any or any proper steps to correct the representations after becoming aware of their falsity.

(vi) Making representations which they knew or ought to have known were false.

(e) In truth and in fact, the said representations were false, untrue, inaccurate and misleading.

11. (a) On the 26th day of January 1980 the respondent locked the applicant out of the said shops B.01 and B.02 and since that day has refused to permit the applicant to occupy the said shops B.01 and B.02.

(b) On the 26th day of January 1980 (the lockout) no monies were owing by the applicant to the respondent under the said lease whether for rental, outgoings, interest or otherwise.

PARTICULARS

(i) after the respondent had received the applicant's letter dated the 16th November 1979 the applicant on the 21st day of November 1979 met with the representatives of the respondent at their invitation at South Melbourne to discuss the differences between the parties ('the South Melbourne Meeting').

(ii) At the South Melbourne meeting it was agreed orally between Mr. Powderly as agent for the respondent and Mr. T. N. Lucas as agent for the applicant that the applicant would pay the rental (being the calendar monthly rental of $2,006-66 referred to in the said lease, but would not pay any other charges pursuant to the said lease and that the said rental would become payable on the oral agreement and being confirmed in writing by the respondent.

(iii) the said oral agreement was never confirmed in writing by the respondent.

(c) By reason of the matters referred to in paragraphs 11 (a) and (b) hereof and the particulars thereto the respondent repudiated the said lease which repudiation was accepted by the applicant by issuing proceedings in the Supreme Court of Victoria on the 8th day of February 1980 (later stamped) or further or alternatively by issuing these proceedings in the Federal Court of Australia.

12. By reason of the matters aforesaid and in particular;

(a) by reason of the contravention of the provisions of Section 52, 53 (aa) and 53A of the Trade Practices Act 1974,

(b) by reason of the breaches of warranty and the false representations made and negligence as aforesaid -

(c) by reason of the 'lockout' and repudiation of the said lease by the respondent the applicant has suffered and will continue to suffer loss and damage in respect of Shops B.01 and B.02.

PARTICULARS

(a) The business conducted by the applicant at Shops B.01 and B.02 between the 10th October and 25th January 1980 was conducted at a loss and was a worthless business. Had the representations been true, the business would have been a business conducted by the applicant at a profit, and would have been a valuable business.

The net loss for the period from the 10th October 1979 to 25th January 1980 was $5,368-00.

(b) The applicant is suffering a loss of income profits and a loss of goodwill.

(c) The applicant has expended large sum of capital in establishing its business and has considerable expertise in baking and pastry cooking, and is not earning any income or profits in respect of that capital outlay and expertise that it would have earned had the representations been true. Or alternatively, it has been deprived of the opportunity of using its said capital and said expertise elsewhere to make profits and build up a valuable business (as it has done in the past at Balwyn and Doncaster).

(d) The applicant was required to pay the sum of $3,179-75, in respect of additional electrical installations.

(e) The applicant was required to pay the sum of $3,003-00 in respect of additional plumbing costs.

(f) The applicant was required to pay the sum of $80-50 in respect of additional sprinkler installations.

(g) The applicant has not been able to carry on its business from the said shops since 26th January, 1980.

(h) As a result of the 'lockout' the applicant incurred legal fees in respect of actions against it, inter alia, from suppliers of equipment, fittings and ingredients.

The applicants losses are continuing and further Particulars will be provided prior to the trial of the action herein.

13. The applicant relies on the jurisdiction of the Court to grant relief herein under Sections 82 and 87 of the Trade Practices Act 1974 and Sections 19, 20, 22 and 32 (1) of the Federal Court of Australia Act 1976 and upon the judicial implied incidental jurisdiction of the Federal Court.

The applicant claims the relief specified in the Application."

As stated in the last sentence of paragraph 20 of the reasons already published, counsel for the applicant disavowed any claim to relief of the kind specified in paragraph 4 or sub-paragraph 5(a) of the application, but that disavowal was not announced until after 9 May 1983. On the other hand the allegations in the amended statement of claim, particularly paragraph 11(c) thereof, are inconsistent with a claim to relief of the kind specified in paragraph 4 or sub-paragraph 5(a) of the application. I think that I should understand the final sentence of the amended statement of claim as asserting claims to relief other than those specified in paragraph 4 and sub-paragraph 5(a) of the application.

I find it difficult to identify the matters alleged in the amended statement of claim which should be regarded as constituting "the grounds", as the prescribed form of an application commencing a proceeding in this court has it, of any one of the claims in this application. But the claim specified in paragraph 5(c) of the application must, as it seems to me, be grounded upon those of the allegations in the amended statement which show conduct done on behalf of the respondent by one or more of its directors agents or servants in contravention of s.52 or s.53(aa) or s.53A of the Trade Practices Act 1974 and which show that the applicant "has suffered, or is likely to suffer, loss or damage by that conduct" : see s.87 of the Trade Practices Act 1974. The same allegations constitute the ground of a claim for damages, pursuant to s.82(1) of that Act. It will be observed that nowhere in the application is there to be found a claim expressed in language apt to comprehend the relief which s.82(1) prescribes : a judgment in common law form for damages. The verbiage of paragraph 3 of the application is that of s.87(2)(d). But the proceeding was conducted on the footing that a judgment for damages under s.82(1) was claimed and might, if the relevant allegations were proved, be awarded; and in paragraph 13 of the amended statement of claim there is reference to that section. I think that I should determine questions of costs on the footing adopted by the parties, that when the application and the amended statement of claim are read together a claim for damages under s.82(1) is disclosed.

Mr. Goldberg submitted that the expression "all causes of action . . . . . . upon which the Applicant claims" in the notice of deposit designated, and designated only, those of the applicant's claims which were for recovery of damages. Those words in Form 31 should be understood in that sense, he said, because that was the meaning which Order 23 assigned to the words "cause of action" and Form 31 could serve the purposes of that Order only if the defined meaning were assigned to those words in a notice of deposit. The expression "cause of action" is in many contexts understood to designate "simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person" (per Diplock L.J. in Letang v. Cooper (1965) 1 Q.B. 232 at 242-243). In many contexts the circumstance that the one "factual situation" entitled one person to obtain, or enlivened a power to grant to one person, more than one remedy against another person, whether cumulatively or as alternatives, would not lead to the conclusion that out of that factual situation there arose a plurality of "causes of action". (See, for example, Wiltshire Bacon Co. v. Associated Cinema Properties Ltd. (1938) Ch. 268 at 722-274. Cf. Prior v. Landsdowne Press Pty. Ltd. (1977) V.R. 65 at 75-76.) But, according to the submission of Mr. Goldberg, in Order 23 Rule 1 "cause of action" is defined by reference not only to the factual situation, but also to the remedy claimed, in terms which on the one hand exclude from the defined meaning of that expression "a particular category of factual situation" (1965) 1 Q.B. at 243) upon which a claim for relief other than "the recovery of debt or damages" is grounded, but which on the other hand comprehend that same category of factual situation upon which a claim for the recovery of debt or damages is grounded. If, therefore, the factual situation which grounds a claim to damages under s.82(1) is identical with the factual situation which grounds a claim to relief which may be granted in pursuance of s.87, either generally or upon the particular allegations in a proceeding such as this, then according to Mr. Goldberg's submission a claim of the former description will be within Order 23 Rule 2(1)(a), and will be comprehended by the words in Form 31, and a claim of the latter description will not; and, if both kinds of claim are made in the one proceeding, whether cumulatively or in the alternative, reference only to the former will be understood to have been made by a notice of deposit expressed to be "in answer to all the causes of action on which the applicant claims".

It seems to me that the terms of the definition in Order 23 Rule 1 are consistent with those submissions, and that the construction for which Mr. Goldberg contended is consonant with the scheme and purpose of Order 23 and Order 62 Rule 27. I am inclined to accept the submission. If it were rejected, and the definition in Order 23 Rule 1 were understood to comprehend only a factual situation in respect of which the only remedy allowed by law, or alternatively the only remedy claimed in the proceeding, was recovery of debt or damages, the utility of Order 23 would be diminished by reduction, in comparison with the construction advanced by Mr. Goldberg, of the circumstances in which payment into court might be made. Order 23 and Order 62 Rule 27 appear to me to evince an intention to facilitate not only complete settlement of a proceeding, but also, as an alternative, the elimination from a proceeding of as many aspects of controversy as possible. It is true that when in respect of "a particular category of factual situation" several remedies including damages are available and are claimed in a proceeding (not in the alternative, but cumulatively), the acceptance of money paid into court in respect of that category will, if Mr. Goldberg's submission be accepted, leave on foot the claims for remedies other than damages. But any other construction of the definition of "cause of action" in Order 23 Rule 1 which I could entertain results in the entire exclusion from Order 23 Rule 2(1) of that category.

Mr. Kennon of counsel for the applicant submitted that the notice of deposit failed to comply with the requirements of Order 23 by reason of the inclusion in the notice of deposit of the words "and all breaches alleged". In one sense the submission is obviously correct : the notice is not "in accordance with Form 31 in the First Schedule", as Order 23 Rule 6 requires that it should be, not merely because the added words are not to be found in Form 31, but because the added words serve no purpose within the contemplation of any provision of Order 23. But does the notice fail to comply with Order 23 in the sense that it contravenes one of the provisions of that Order or expresses a proposal, concerning the money to which it refers, inconsistent with those provisions, so that it might be described as "irregular and invalid and ineffective for the purpose of" that Order or as "not . . . . within" that Order? (See Prior v. Lansdowne Press Pty. Ltd. (1977) V.R. 65 at 76; Young v. Black Sluice Commissioners (1909) 73 J.P. 265 at 266; cf. Schulte-Hordelhoff v. Patons Brake Replacements Pty. Ltd. (1965) V.R. 369 at 371.)

I should perhaps record that counsel for neither party sought to suggest what the draftsman of the notice had in fact intended that the words of the notice should communicate, or what the applicant or his advisers had in fact thought that those words meant, or that any elucidation of the meaning of the notice had been sought or given before the proceeding was called on for judgment.

Mr. Goldberg submitted that the words "and all breaches alleged" in the notice of deposit would be understood by the applicant's legal advisers, or by any lawyer familiar with the Rules and the documents filed in the proceeding, as indicating, out of an abundance of caution on the part of the draftsman, that every money claim in the proceeding, whatever the "breach" grounding it, was to be satisfied by acceptance of the money brought into Court.

Such an understanding of the added words appears to me no more than one that it is possible the draftsman intended. An explanation that strikes me as no less likely is that the draftsman was conscious that some of the acts alleged in the amended statement of claim to have been done were "breaches" for which natural persons, not parties to the proceeding nor as yet sued by the applicant, might be subjected to a civil liability, and that the draftsman considered that the added words would or might result, if the money were accepted, in the extinction of the liability of those persons for those "breaches". If the liability of Mr. Craig Robertson, who was dead, be disregarded, the liability of those natural persons who caused the brochure and advertisements, to which reference is made in paragraphs (c) and (e) of the particulars under paragraph 4 of the amended statement of claim, to be published to the applicant's officers may have been within the draftsman's contemplation; and also within that contemplation may have been the "director" of the respondent to whom the particulars under paragraph 6 of the amended statement of claim refer : see ss. 75B and 87 of the Trade Practices Act 1974.

If it be objected that a lawyer would know that the liability of a person not a party to the proceeding could not be extinguished, upon acceptance of the money paid into Court, by means of such an addition to the prescribed form of words, I think the objection is answered by saying that the terms of the notice of deposit strongly suggest that the draftsman did not understand Order 23. Further, the provisions of Order 23 Rule 11(2) may have brought the draftsman's mind to a consideration of persons who were not parties to the proceeding. On the other hand, concern for the interests of such persons would be allayed, one might think, by regard to s.82(2) of the Trade Practices Act 1974. At all events, I cannot say what the additional words were intended by their author to convey. Nor can I say that the notice does not upon an examination of its terms express a proposal that receipt of the money in court should be in discharge of any right to a civil remedy which the applicant might have, against any person whose act is alleged in the amended statement of claim to have been a "breach" of a provision of the law, in respect of that breach. That meaning satisfies the terms of the notice at least as well as any other meaning, it seems to me. In those circumstances I hold that the payment into Court was so seriously lacking in compliance with the requirements of Order 23 that the occasion has not arisen for the exercise of the court's discretion as to costs in accordance with the practice that a respondent whose payment into Court, in accordance with the requirements of Order 23, exceeds the amount for which judgment is given gets an order for payment by the applicant of his costs incurred since the date of the payment into Court. I hold that the notice is invalid and ineffective for the purpose of Order 23.

Notwithstanding those conclusions, money was brought into court and Order 62 Rule 27(2) authorises the Court to take that fact into account, and the amount thereof, in exercising the discretion as to costs. (Cf. Prior v. Lansdowne Press Pty. Ltd. (1977) V.R. 65 at 77-8; Schulte-Hordelhoff v. Paton's Brake Replacements Pty. Ltd. (1965) V.R. 369 at 371.) In estimating the likely result of the proceeding the applicant's legal advisers would, I consider, have been confident of an award of damages upon the cause of action provided by s.82(1) of the Trade Practices Act 1974, but not confident of any other order in the applicant's favour. In paragraphs 30 and 31 of my reasons for judgment claims for interest as components of the damages claimed are discussed and rejected. If the applicant's legal advisers had thought that the chance of success in obtaining some allowance in respect of interest was substantial, that evaluation of those claims could not in my opinion be considered unreasonable. Acceptance of one or other of those claims would probably have taken the award of damages above $65,000. In those circumstances I do not consider that the applicant's failure to accept the money brought into Court justifies an order which deprives the applicant of any of its costs of the proceeding. Order 23 and Order 62 Rule 27 and the practice as to costs which is founded upon those and similar rules of court give rigorous effect to the policy that the parties to civil litigation should be induced to compromise. When a respondent fails in compliance with those rules in the serious way I have held that the respondent in this proceeding did, I do not consider that the applicant should be deprived of costs incurred after money is paid into court for failure to recover more than the amount paid into court if a substantial possibility that the applicant would recover more than that amount might reasonably have been perceived by his legal advisers. No rule or practice or presumption fetters the exercise of the discretion as to costs in such a case as I conceive this to be, so far as I am aware, and in so far as the preceding sentence suggests that I am myself propounding some such a fetter, I disavow that intention. In all the circumstances of this case I just do not find cause for any order but that the costs follow the event.

Mr. Kennon relied on the circumstance that the payment into court was made on the day the trial began rather than at an earlier time. He submitted that an applicant and his legal advisers lack during the course of trial the time required for calm reflection and consultation concerning a payment into court and that it was a consideration against the respondent in the exercise of the discretion as to costs that the respondent had chosen to make the payment after the trial had commenced. He relied upon the reasoning of Murphy J. in Page v. Incorporated Nominal Defendant (1981) V.R. 170 in support of his submissions.

Mr. Goldberg did not suggest that any circumstance existed which justified (if justification be required) or explained deferment of the payment into Court until the time of trial.

Unlike the rules which Murphy J. was expounding, Order 23 explicitly contemplates, and makes special provision with respect to, payment into court after the beginning of the trial : see Rule 10. It seems that a respondent who brings money into court after the beginning of the trial cannot, as a respondent who brings money into court before the beginning of the trial can, be ordered to allot the money amongst two or more causes of action in answer to which money has been brought into Court : See Rule 7. I have reached a conclusion concerning costs without taking into account in favour of the applicant any consideration based on the time at which payment into court was made, and I need not, therefore, express any opinion on the submissions which Mr. Kennon made on that subject.

Mr. Kennon invited me to take into account, in determining what weight the time of payment into court should have in exercising the discretion as to costs, certain personal characteristics of Mr. Lucas, which I was to infer from that witness's demeanour and testimony in the witness box. Mr. Lucas was shown by the evidence to be of little formal education. I was invited to conclude that he was at the time of trial under the influence of very strong feelings of loss and grievance. In case it should matter hereafter, I record my findings that at the time of trial Mr. Lucas would have been able to overcome any emotional impediment to calm consideration of legal advice by the exercise of his considerable native wit and his will to further his own interests. The main, and no doubt considerable, impediments to his exercise, within so short a period as the two days prescribed by Order 23 Rule 10(3), of an informed judgment concerning the payment into court, would have been, as I find, his poor knowledge of English and his unfamiliarity with the sort of conceptualisation which is required for the formation of such a judgment.

In Prior v. Lansdowne Press Pty. Ltd. supra the money paid into court, the notice concerning which had been held "irregular and invalid and ineffective for the purpose of" the rules governing payment into court, was ordered "to be paid out to the plaintiff's solicitors so far as necessary to satisfy the judgment and costs and otherwise returned to the defendants' solicitors" ((1977) V.R. at 77). I have reached the same conclusion about the inefficacy of the respondent's notice of deposit; and the fact that the respondent has brought money into court has not resulted in any exercise of the discretion as to costs adverse to the applicant. In those circumstances I do not consider that the money in court should be made available to the applicant by the court's order as a source from which the judgment, or the order for costs in the applicant's favour, may be satisfied. I assume, but without deciding, that there is power to make such an order. The respondent's attempt to invoke the operation of Order 23 having proved wholly ineffective, it seems to me an inappropriate exercise of the court's discretionary control over the money brought into court that it be made a security for satisfaction of the court's judgment or order for costs. It does not appear that the point was argued before Gowans J. in Prior's Case. I will order that the whole of the money in Court be paid out to the respondent's solicitors.