Wait, Kenneth Marr v Reed, Noel Lloyd

[1997] FCA 278

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY  No   QG 38 of 1990

GENERAL DIVISION

BETWEEN:KENNETH MARR WAIT and MIRANDA WAIT

Applicants

AND:NOEL LLOYD REED and ELIZABETH JOYCE REED

Respondents

CORAM:                   SPENDER J
PLACE:  BRISBANE
DATE:  18 APRIL 1997

MINUTES OF ORDER

THE COURT ORDERS THAT there be no order as to costs, including reserved costs.

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  No   QG 38 of 1990

GENERAL DIVISION

BETWEEN: KENNETH MARR WAIT and MIRANDA WAIT

Applicants

AND: NOEL LLOYD REED and ELIZABETH JOYCE REED

Respondents

CORAM:                   SPENDER J
PLACE:  BRISBANE
DATE:  18 APRIL 1997

REASONS FOR JUDGMENT

When judgment was pronounced in this matter on 4 February 1997, I invited the parties to make written submissions concerning the appropriate order for costs, having regard to the reasons for judgment.

Those written submissions have been considered.

The applicants’ primary submission is that, in light of their success, costs should follow the event;  If on the other hand, the court were to order a reduction in costs, it was submitted that the applicants should receive 75% of their costs.

It was submitted by the respondents that in the exercise of the discretion as to costs, while the general rule is that costs follow the event, it was appropriate in this case to recognise that where a party has been only partially successful, that party may be required to bear the costs of the part upon which that party has failed and even to bear the costs of the other party.  It was submitted in the circumstances of this case theapplicantsshould pay 80% of the costs of and incidental to the action of the respondents, including reserved costs and including the costs of the submissions concerning costs.

Section 43(2) of the Federal Court of Australia Act 1976 provides:

“  Except as provided by any other Act, the award of costs is in the discretion of the Court or a Judge.”

In Hughes v Western Australian Cricket Association (Inc) (1986) ATPR ¶40-748 Toohey J said at 48,136:

“(1)    Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey [1920] 2 K.B. 47.

(2)Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.  Forster v Farquhar [1893] 1 Q.B. 564.

(3)A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them.  In this sense, ‘issue’ does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 S.A.S.R. 4 at p. 12.”

The applicants failed in their primary case which was based on a contravention of s 52 of the Trade Practices Act and in negligent misstatement.  The claim by the applicants on these bases involved amounts in excess of $480,000.00.  The applicants succeeded on their secondary claim in contract but the amount awarded to the applicants in respect of the building defects found in the unit was the modest amount of $11,730.00, excluding interest.

In Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 42 FLR 213, Fisher J noted at 221-2:

“  Bray C.J. in Cretazzo v Lombardi (1975) 13 S.A.S.R., at p. 14 was of opinion that it was proper to split costs in accordance with the success of the parties on various disputed questions of fact and law, and this view was shared on the facts of that case by Zeling and Jacobs JJ., the other members of the Full Court.”

See also Verna Trading Aust Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129, where the Full Court held that the discretion conferred by s 24 of the Supreme Court Act 1986 (Vic) was wide enough to enable the Court not only to deprive a successful defendant of costs but even to make an order that the successful defendant pay costs to an unsuccessful plaintiff.

The position is that the applicants have had some success in its contract claim but has wholly failed on the trade practices and negligent misstatement claims.

There is not a great utility in a detailed analysis of the time spent in the court proceedings on the respective claims.  It is right to say that a great deal of the time in court was concerned with questions of building defects and deficiencies, but these matters had a relevance not only to the contract claim but also in relation to elements of the misrepresentation claim.

Having regard to the degree of success achieved by the applicants, and their failure on the primary case advanced on their behalf, I think a proper exercise of the discretion conferred by s 43(2) of the Federal Court of Australia Act in the circumstances of this case is to order that there be no order as to costs in respect of these proceedings, including reserved costs.  I so order.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date:   18 April 1997

Written submissions filed on behalf

of the applicants  :     Mr D J Campbell of Counsel

Writtensubmissions filed on behalf

of the respondents by the respondents

in person

Dates of filing  :     Applicants’ submissions filed 13 February 1997

Respondents’ submissions filed 24 February 1997

Applicants’ submissions in response to respondents’ submissions filed 28.2.97