FEDERAL COURT OF AUSTRALIA

Hanave Pty Ltd v LFOT Pty Ltd [1999] FCA 572

PRACTICE AND PROCEDURE – Costs – Appeal to Full Court allowed and costs orders made – Subsequent request by respondent to vary costs orders – No submission in relation to costs during course of hearing – Application refused.

HANAVE PTY LIMITED (ACN 001 416 226) v LFOT PTY LIMITED (FORMERLY JAGAR PTY LIMITED)(ACN 050 049 182), PAUL EWEN MITCHELL TRESIDDER and JOSEPH RAYMOND GLEW

NG983 of 1998

WILCOX, KIEFEL and EMMETT JJ

SYDNEY

7 MAY 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application to vary the Court’s orders concerning costs be refused.

2.                  The costs of the application be costs of the appeal.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     WILCOX and KIEFEL JJ: After judgment was delivered in this matter the respondent, LFOT Pty Limited, sought a variation of the costs order the Court had made.  Written submissions were supplied and the appellant provided submissions in reply.

2                     No reference was made to the matter of costs during the hearing of the appeal.  This was the appropriate time to put any submission that costs, whether of the trial or appeal, ought not to follow the event.  If it had been thought desirable to have the Court’s decision on the substantive issue before putting submissions in relation to costs, as is sometimes appropriate in complicated cases, this could and should have been raised with the Court during the hearing.  It is inappropriate for a party to say nothing about costs, or any other ancillary matter, during the hearing, await the outcome of the appeal and then ask the Court to vary its orders.

3                     This same situation arose in Preston Erection Pty Ltd v Speedy Gantry Hire Pty Ltd [1999] FCA 122 (23 April 1999).  That was a patent case but the approach taken by the Full Court in that case is equally applicable to the present case.  We adopt what was there said.

4                     We refuse the application to vary the Court’s orders.  The costs of the application are to be costs of the appeal.

Associate:

Dated:              7 May 1999

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

EMMETT J:

5                     As is apparent from the reasons delivered on 1 April 1999, I would not have interfered with the orders made by the trial judge.  It was not necessary, therefore, for me to express a view as to the order for costs of the trial which I would have made, had I reached a different conclusion on the substance of the appeal.  However, I agree that the respondents ought to have put their submissions on the question of costs, or should have reserved the question of costs, during the hearing of the appeal. I agree that the application to vary the orders of the Court should be refused and that the costs of the application should be costs of the appeal.

Associate:

Dated:              7 May 1999

Date of judgment:                          7 May 1999