th tu ie) ct is) s tn CATC HANGRES TURELIN NOMINEES PRY VG No. 202 of 1932 LTD. Ty vise RArNEOPD LIMTT= to make orders as t Qa Q QO un ct i) THE COURT ORDERS THAT: . — ted) iD ct «1 << iy i$) jayk=} (Resrcendencr) asapfe a fae vd fe} ee ey fon 1) La} CQ ry ft cr py" oO nh uv cy < Order: 31 May 1984 The respondent pay to the applicant his costs of and incidental to the action including reserved costs. The oplicant pay to the respondent the costs of the attendance in Melbourne of its Witnesses Bancy, Kiernandéda, Flintoff and Holt, and ct obtaining their attendance. The acecilcanc cay to the vresvcendent =y0 thirds cf its a fe) roy a u oO my, fa D A ~ rs] fe) rR fa owct % ra qt oO ral r» t wm iv Lay fo] ye) oO mh cat Pp [2 ta4 a ct a rs oO . 2. Sth, 6th, 7th, Sth and 9th December 1993 1n addition to the costs of the above menticned witnesses. 4, The costs payable by the applicant and the respondent respectively he set off against each other, the balance to be paid to the oarty to when an amount is still owing by the other party. 5. There be Liberty to anoly. 6. Each party bear their own costs of and incicencteli to this Notice of Motion. al — i VICECRES DISTRICT REGIST E GENERAL DIVISTON ctoO un c a a oO uN uv my G ee "3 a a] ct <4 fon Lom D costs. the hearin F.) Ps ry un p. © <q oO a p. a contravened s.52 of the Tr ara submissions as to costs. As However, the resvondent roints out that the bulk of the claim that the ace Practices Act 1974 and was negligent, and respondent's conduct Was negligent, the sablish any entictlement tc e¢ oO applicant failec to pcove - a - - = = - » at co relist in cesrect thereot. CTNal The atpliczant s claim fcr conaucit Fazied. Tae arxiicanct 2. succeeded upcn the issue of the construction and, effect er the contract as 15D on leve able and willing to deliver unic or is) ct providing for the saié Re applicant of uni a 1 15 of the relevant buildings. The respondent was 15D on level 14 but nev unit 1ED on level 15. The applicant succeeded also upcen the was a warranty that the unit offered to the avplizant was on level 15 whereas it was on level 1+. The apelicant contends that as hs succeeded in proving deen made to respondent he'should have his costs and certaznly not have to pay costs in respect of the issue of the making of tne statements and their untruth and of the issue of negligence." It is my opinion that although th judgment was favourable to the applicant there and negligent that misleading stavements had conduct is a discretion in the court to make such order as to the Federal Court oF Australia Act 1976 (1} The Court or a Judge has qurisdicti in all proceedings be Fat pero ceedings (2) Exzcevt as provided by any cthsr Act, the awara of _ccsts is in the discretion of the Court or Judge. According to the decision cf Fausher 7g. in Practicas Commission v. Nichcias Enterprises Perv. Era. & Ges. (2979) 23 ALR ZO cne discretion so conierred is unfettered. ft must of course be exercised judicially. Has Honour ceferred co anc ay w "J a) and WW wm Su th .. D fo ci a) is ia ct oO a HS) ft) a th rh 1D Q ct el ny fo cw a vy wT Q woipy t2 within that discretion an order may ne made chat a successiul pacty pay che costs of an unsuccessiul carcty -and that 2 successful party be deprived of costs on varticular 1ssues. Tf resvectfully concur in these onservations and the reasons therefor. to some and what extent. The 1ssue of inducement vas, of course, critical. Té was idle to prove the respondent's wrongful conduct unless inducement was proved. No doubt the that he was so induced, the fact is that that persuasicn was self induced and unjustifiably so. There were two consequences. First much time was taken ur cn the issue of inducement on Which the applicant Lost. Secondly, much time was taken up on investigation of the Whack im VlLév Of THe apolicant -1 rae - ~ a= ee ee a " The Llitiszation. On a true cl Ans situation or Pan "een at qeqipeeears sh wh sone ~= a sees rae ons mavces Cr ANcucEnTenl, Whicn was essentially 4 matter Ice the applicant, he was not justified in seeking relief in respect of the respondent's conduct. The applicant must, I think, be treaced as havine known that his case so far as it was based on misleading conduct, and negligence, was unsound. The nature of the issue on which the applicant failed, and of the reason why it failed, have a particular significance with respect to the arplicant's responszbility fer the undue magnitude oi the Llitigaticn. Accordingly, 1t arpears to me hat the justice of the ts based cn the Oo a) case would not be met by an adjustment of c¢ cv view that the burden may be split betwe the parties N according to their success or failure or particular issues. There was, on what the applicant knew aor ought to have kncewn, no reason for litigating the respondent's conduct other than a hope that "he might succeed in persuading the court, contrary to the reality, that it was that conduct which caused him to act to his detriment. And, of course, had the Cscision in this case turned on o pb w the issues arising out of the respondent's conduct ry CY) respondent would have been the successful party in t litigation. rt 1s probably velevant aiso that the respendent's ccneuct, althougn waislsading, and neqligenc, did not Rave any element tnerain of deliberate iuntention to miglead, fgainst this cactgscund Mr. Ecanler contended thec costs of the action axcluding such costs as are referable to Buchanan for the applicant contends th a successful party should receive hi He relied established the misleading and ie) P ct Pa negligence alleged' by him. Als that, even had the action been lim contracc as tc tne location of the i was willing to teansfec to the agplic been necessary to cail evidence as to view tfom, and other characceri "S tics Ur s costs should prevail. on the circumstance that the applicant had deceptive conduct anc was uraed by Dr. Buchanan ited to tne breach of and which the respondent ant, 10 would stil} have wnat was said apout the He suggested that it would have been necessary to show not only the breach of the contract but characteristics were matters of esse applicant. Euc the judgment in nis fa thea grouni tract the view and chara descritsd in the contract were essent 6. of the units offered in performance of the contract. Tt proceeds on the ground that what was offered was a different unit. In so far as the apslicant might have sought to reiy cn the differencas as essential factors, I would not have regarded them as such, elther objectively, or in the mind af the applicant. It seems to me to be an important consideration chat it was the state of che applicant's own mind which caused his failure to vorove his entitlement to relief on the geound of misleading anc deceptive conduct and negligence issues. in my opinion therefore the applicant should hear ct ea Vy) bo Cc is ray a[3] Fh costs so far as thev relate to proof of that conduct and th i) examination of his own mind in respect of it. Had the action related only to the issues on which the respondent succeeded the actual hearing would in my ovinion have occuvied not more than one day or a little more. Success on those issues depended on the cocuments and proof of the state of the building. The hearing extended over four and one half cays. r think the respondent shoulc pay to the applicant his costs of and incidental to the action inclucine reserved costs anc chat the aprlicant should pay to the retvondent the costs of the attenégance in Meibcurnse of the witnesss Sandy, Zrerpnanda abpceéencance In MGlLoOocurns cl LAS WLUNSSSSss, eancy, nLsenanaa, 7. Crane. I consider that those of the attendance of the witnes 1) Aly Po] t the respondent however the event turned out. I considers also we p p cr ct ea i) io} Ww [-! B n p to] TT 10) y oO i rear) a ie) f '<4 ct fe) cl Ps rtf] ty wo an wy [s) a ia m '5 at ct g Oo ct ; jot ry ra 1) a Fay incurred in addition to the costs ct these balance voard to the party to whem an amount, after such Cr Az30C327°9 i naned: Bi[sfis arenetetpen Teed