FEDERAL COURT OF AUSTRALIA Fitzwood Pty Ltd (ACN 005 180 163) v Unique Goal Pty Ltd (In Liq) (ACN 064 926 843) [2002] FCAFC 384 FITZWOOD PTY LTD (ACN 005 180 163) AND MAPEKA PTY LTD (ACN 005 037 088) AND MAPWOOD PTY LTD (ACN 090 880 318) v UNIQUE GOAL PTY LTD (In Liquidation) (ACN 064 926 843) AND BRIAROAKS PTY LTD (ACN 007 055 745) AND MICHAEL DRAPAC VG 54 of 2002 LEE, HILL AND DRUMMOND JJ 29 NOVEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG54 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: FITZWOOD PTY LTD (ACN 005 180 163) FIRST APPELLANT MAPEKA PTY LTD (ACN 005 037 088) SECOND APPELLANT MAPWOOD PTY LTD (ACN 090 880 318) THIRD APPELLANT AND: UNIQUE GOAL PTY LTD (In Liquidation) (ACN 064 926 843) FIRST RESPONDENT BRIAROAKS PTY LTD (ACN 007 055 745) SECOND RESPONDENT MICHAEL DRAPAC THIRD RESPONDENT AND: BRIAROAKS PTY LTD (ACN 007 055 745) FIRST CROSS-APPELLANT MICHAEL DRAPAC SECOND CROSS-APPELLANT AND: FITZWOOD PTY LTD (ACN 005 180 163) FIRST CROSS-RESPONDENT MAPEKA PTY LTD (ACN 005 037 088) SECOND CROSS-RESPONDENT MAPWOOD PTY LTD (ACN 090 880 318) THIRD CROSS-RESPONDENT CEMAK PTY LTD (ACN 060 432 902) FOURTH CROSS-RESPONDENT NEJAT MACKALI FIFTH CROSS-RESPONDENT UNIQUE GOAL PTY LTD (In Liquidation) (ACN 064 926 843) SIXTH CROSS-RESPONDENT PRICE BRENT (a firm) SEVENTH CROSS-RESPONDENT COLTMANS PRICE BRENT (a firm) EIGHTH CROSS-RESPONDENT MIDDLETONS MOORE & BEVINS (a firm) NINTH CROSS-RESPONDENT JUDGES: LEE, HILL AND DRUMMOND JJ DATE OF ORDER: 29 NOVEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS AND DECLARES THAT: 1. The appeal from the orders and declarations of the learned primary Judge be allowed in part in respect of the orders and declarations made by his Honour on 14 December 2001, by: (a) varying Item 3 thereof by inserting the word "not" before the word "entitled" and by adding Sub-Item (c) as follows: "(c) its costs in this proceeding". (b) setting aside Item 4 thereof. (c) varying Item 5 thereof by adding the further words "and be indemnified by the second and third Respondents in respect thereof". (d) Setting aside Item 6 thereof and substituting in lieu the following: "The second and third Respondents pay the Applicant's costs of the application for an injunction to restrain sale by the first Respondent of the trust property and indemnify the Applicant in respect of any costs it may have been ordered to pay to the first or fourth Respondents in that application and otherwise pay one-quarter of the Applicant's costs of the proceeding up to and including 14 December 2001." (e) setting aside Item 10 thereof. 1. Save as aforesaid the appeal be dismissed. 1. The second and third Respondents pay one-quarter of the appellants' costs of the appeal, it be declared that the first Respondent is not entitled to be indemnified from the assets of the Mount Alexander Unit Trust in respect of its costs of the appeal and otherwise there be no order as to the costs of the appeal. 1. The cross-appeal be dismissed and the cross-appellants pay the costs of the first to third and seventh to ninth cross-respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG54 OF 2002 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: FITZWOOD PTY LTD (ACN 005 180 163) FIRST APPELLANT MAPEKA PTY LTD (ACN 005 037 088) SECOND APPELLANT MAPWOOD PTY LTD (ACN 090 880 318) THIRD APPELLANT AND: UNIQUE GOAL PTY LTD (In Liquidation) (ACN 064 926 843) FIRST RESPONDENT BRIAROAKS PTY LTD (ACN 007 055 745) SECOND RESPONDENT MICHAEL DRAPAC THIRD RESPONDENT AND: BRIAROAKS PTY LTD (ACN 007 055 745) FIRST CROSS-APPELLANT MICHAEL DRAPAC SECOND CROSS-APPELLANT AND: FITZWOOD PTY LTD (ACN 005 180 163) FIRST CROSS-RESPONDENT MAPEKA PTY LTD (ACN 005 037 088) SECOND CROSS-RESPONDENT MAPWOOD PTY LTD (ACN 090 880 318) THIRD CROSS-RESPONDENT CEMAK PTY LTD (ACN 060 432 902) FOURTH CROSS-RESPONDENT NEJAT MACKALI FIFTH CROSS-RESPONDENT UNIQUE GOAL PTY LTD (In Liquidation) (ACN 064 926 843) SIXTH CROSS-RESPONDENT PRICE BRENT (a firm) SEVENTH CROSS-RESPONDENT COLTMANS PRICE BRENT (a firm) EIGHTH CROSS-RESPONDENT MIDDLETONS MOORE & BEVINS (a firm) NINTH CROSS-RESPONDENT JUDGES: LEE, HILL AND DRUMMOND JJ DATE OF ORDER: 29 NOVEMBER 2002 WHERE MADE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 On 14 November 2002 we delivered judgment in the present appeal and cross appeals. At that time we ordered that the parties each prepare short submissions as to the orders that should be made in respect of the costs at first instance to take the place of Order 6 of the orders made by the primary Judge. 2 We also ordered that the parties file and serve draft short minutes of the orders to be made on the appeal. 3 We have now received these submissions and some submissions covering other incidental orders. We have taken these submissions into account and would make the following orders reflecting as best we can the success or otherwise of the various parties to the appeal and cross appeals and with a view to doing justice as among the various parties to the proceedings. 1. The appeal from the orders and declarations of the learned primary Judge be allowed in part in respect of the orders and declarations made by his Honour on 14 December 2001, by: (a) varying Item 3 thereof by inserting the word "not" before the word "entitled" and by adding Sub-Item (c) as follows: "(c) its costs in this proceeding". (b) setting aside Item 4 thereof. (c) varying Item 5 thereof by adding the further words "and be indemnified by the second and third Respondents in respect thereof". (d) Setting aside Item 6 thereof and substituting in lieu the following: "The second and third Respondents pay the Applicant's costs of the application for an injunction to restrain sale by the first Respondent of the trust property and indemnify the Applicant in respect of any costs it may have been ordered to pay to the first or fourth Respondents in that application and otherwise pay one-quarter of the Applicant's costs of the proceeding up to and including 14 December 2001." (e) setting aside Item 10 thereof. 2. Save as aforesaid the appeal be dismissed. 3. The second and third Respondents pay one-quarter of the appellants' costs of the appeal, it be declared that the first Respondent is not entitled to be indemnified from the assets of the Mount Alexander Unit Trust in respect of its costs of the appeal and otherwise there be no order as to the costs of the appeal. 4. The cross-appeal be dismissed and the cross-appellants pay the costs of the first to third and seventh to ninth cross-respondents. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Lee, Hill and Drummond. Associate: Dated: 29 November 2002