CATCHWORDS

COSTS - unsuccessful application under Trade Practices Act 1974 - no point of principle involved.

Federal Court Rules - O 63

No. NG 42 of 1993

JOSEPH ABRAM and Anor v BANK OF NEW ZEALAND and Anor

MOORE J

SYDNEY

5 September 1995

IN THE FEDERAL COURT OF AUSTRALIA)

                                  )

NEW SOUTH WALES DISTRICT REGISTRY)         No. NG 42 of 1993

                                  )

GENERAL DIVISION                  )

                   BETWEEN:                     JOSEPH ABRAM

                                             First Applicant

                                      First Cross-Respondent

                                          JANETTE DAWN ABRAM

                                            Second Applicant

                                     Second Cross-Respondent

                   AND:                  BANK OF NEW ZEALAND

                                            First Respondent

                                              Cross-Claimant

                                      MICHAEL J. FITZPATRICK

                                           Second Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     5 September 1995

                     ORDER OF THE COURT

     THE COURT ORDERS THAT:

     1.   The applicants pay the costs of the first and second respondents.

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

IN THE FEDERAL COURT OF AUSTRALIA)

                                  )

NEW SOUTH WALES DISTRICT REGISTRY)         No. NG 42 of 1993

                                  )

GENERAL DIVISION                  )

                   BETWEEN:                     JOSEPH ABRAM

                                             First Applicant

                                      First Cross-Respondent

                                          JANETTE DAWN ABRAM

                                            Second Applicant

                                     Second Cross-Respondent

                   AND:                  BANK OF NEW ZEALAND

                                            First Respondent

                                              Cross-Claimant

                                      MICHAEL J. FITZPATRICK

                                           Second Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     5 September 1995

                    REASONS FOR JUDGMENT

     I gave judgment in this matter on 28 July 1995 and made orders other than orders in relation to costs.  I had earlier received brief written submissions from the second respondent submitting that the applicants be ordered to pay his costs on an indemnity basis or solicitor client basis though, if not, costs should follow the event.

     When giving judgment the first respondent asked for a normal order as to costs which I took to be an order that the
applicants pay the first respondent's costs.  In written submissions subsequently filed by the applicants, they submitted no order should be made as to costs.

     The court has a wide discretion under s43 of the Federal Court of Australia Act 1976 though ordinarily the court would order an unsuccessful litigant to pay the costs of a successful litigant:  see Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40 - 748.

     The Abrams identified several matters that they submit should result in no order as to costs.  Some are irrelevant, such as the profitability of what is asserted to be the beneficial owner of the first respondent, and others are matters that could be considered in any taxation of costs if that were to occur.  I accept that the applicants established a breach of duty by the first and second respondents in relation to the explanation of the mortgage documents and that success on one issue may, in appropriate cases, be reflected in an order for costs.  However the central issue was whether the respondents were liable in damages and, as conceded by Mr Abram on a number of occasions during the hearing, whether an order for possession should be made.

     The applicants failed on both those issues.  The applicants should pay the respondents' costs.  I am not satisfied, however, that it should be on the basis first advanced by the second respondent, that is, on an indemnity basis or a solicitor client basis.  While plainly orders of
that type may be made:  see Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 they are made in exceptional cases.  The case of the Abrams was not devoid of substance and the result depended, in part, in the manner in which discretionary powers arising under the Contracts Review Act 1980 (NSW) were exercised.

     I order that the applicants pay the costs of the first and second respondent.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:                            ......................

Dated:                                ..../..../....

                         APPEARANCES

                                      First Applicant appeared in person for both applicants

Counsel for the First Respondent:     Mr N Hutley

Solicitor for the First Respondent:   Clayton Utz

Counsel for the Second Respondent:         Mr P Liney

Solicitor for the Second Respondent:  Collins Biggers and Paisley

Dates of hearing:                     1, 2, 3 & 7 June, 30 & 31 August, 30 September, 4 & 21 October, 1, 29 & 30 November, 12 December 1994 & 1 & 8 February 1995.

Date of judgment:                     5 September 1995