. JUDGMENT No. 1321 IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G123 of 1985 GENERAL DIVISION ) BETWEEN: ELDERS IXL LIMITED First Applicant AND: AUSTRALIAN ESTATES LTD. Second Applicant AND: AUSTRALIAN ESATES PTY. LTD. Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 3 DECEMBER 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: There be no order as to costs. NOTE: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G123 of 1985 GENERAL DIVISION ) BETWEEN: ELDERS IX LIMITED First Applicant AND: AUSTRALIAN ESTATES LTD. Second Applicant AND: AUSTRALIAN ESATES PTY. LTD. Respondent PINCUS J. 3 DECEMBER 1987 EX TEMPORE REASONS FOR JUDGMENT In this matter, which was, if I may say so, very well argued at the trial by both sides, I have decided that one applicant succeeds and the other fails. Mr. Douglas says, and there is some substance in his contention, that the second applicant should not be ordered to pay costs, because its joinder was occasioned by wrong conduct on the part of the respondent. The conduct of the respondent, I have held, was unlawful but not, to put it simply, manifestly so. The illegality of its conduct was a debatable question, and I held against it on that point. I also held that it had not adopted the name in the belief that it was unlawful. That is, I thought the respondent adopted the name thinking it was lawful to do so. Thus, while I am conscious of the wisdom of the rule to which Mr. Douglas refers, it seems to me that it would not be fair to the respondent to order it to pay the costs of Australian Estates Limited nor to deprive it of costs against Australian Estates Limited while ordering it to pay Elders' costs. As far as Elders is concerned, it has been successful, but not wholly so. Although the case was one in which, as Mr. Douglas rightly says, the evidence would largely have overlapped, it has in fact failed on one claim, and that is not irrelevant in considering where costs should fall. In my opinion, as I have intimated to Mr. Bain in the course of argument, having heard him partly and Mr. Douglas wholly, the proper order 1s to make no order as to costs, and that will be done. tee Fy chetthy and-ha | preceding poo tware ge rie cf 2 veescrs for poorest asa of rig Fricsur Mr Justice F acus tee Associate Dated 3 Decerveev 19° 7