Murphy v Overton Investments Pty Limited [2002] FCAFC 176

FEDERAL COURT OF AUSTRALIA

Murphy v Overton Investments Pty Limited [2002] FCAFC 176 JOHN JAMES MURPHY & ANOR v OVERTON INVESTMENTS PTY LIMITED N 1664 OF 2001 LINDGREN, SACKVILLE & STONE JJ SYDNEY 6 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1664 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JOHN JAMES MURPHY AND DAPHNE MURPHY

APPELLANTS

AND: OVERTON INVESTMENTS PTY LIMITED

RESPONDENT

JUDGES: LINDGREN, SACKVILLE & STONE JJ

DATE OF ORDER: 6 JUNE 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The respondent pay fifty per cent of the appellants' costs of the appeal. 2. The respondent pay the appellants' costs of the cross-appeal. 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 N 1664 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JOHN JAMES MURPHY AND DAPHNE MURPHY

APPELLANTS

AND: OVERTON INVESTMENTS PTY LIMITED

RESPONDENT

JUDGES: LINDGREN, SACKVILLE & STONE JJ

DATE: 6 JUNE 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In a judgment delivered on 16 May 2002, this Court allowed the appeal in part, dismissed the cross-appeal and remitted the proceedings to the primary Judge for determination in accordance with the reasons for judgment. The parties were directed to file written submissions as to costs. 2 The respondent points out that the issues raised by the cross-appeal (which was treated as a notice of contention) took relatively little time and involved relatively little preparation by the parties. Nonetheless, this is no reason why the respondent, which unsuccessfully pursued the cross-appeal, should not pay the appellants' costs of the cross-appeal. Had the respondent simply filed a notice of contention rather than a cross-appeal we would have structured the orders so as to require it to pay the appellants' costs occasioned by the notice of contention. 3 The appellants succeeded on one issue raised by their appeal (the question of capital loss), but failed on all others. Some of the argument advanced by the appellants had not been put to the primary Judge and others required more time to unravel than should have been necessary because of the rather disorganised way in which submissions were put to the Court. In these circumstances, some departure from the usual rule that costs follow the event is warranted. We consider that justice will be done if the respondent is ordered to pay fifty per cent of the appellants' costs of the appeal. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lindgren, Sackville & Stone.