NZI Capital Corporation Ltd v. Poignand, R.J. & Ors [1994] FCA 852

JUDGMENT No. ou Odeo omc Le NOT FOR DISTRIBUTION

FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No NG 620 of 1992 GENERAL DIVISION

BETWEEN:

NZI CAPITAL CORPORATION LIMITED Applicant

AND:

ROGER JAMES POIGNAND & ORS

Respondents CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 11 NOVEMBER 1994 16 NOV 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY REASONS FOR JUDGMENT

HIS HONOUR: In this matter an application has been made for the costs of what I would describe as the Fulton interests in connection with the motion brought by NZI Capital Corporation Ltd. In that motion NZI Capital Corporation Ltd sought orders that proceedings No. NG 620 of 1992 (the guarantee proceedings) and proceedings No. NG 397 of 1992 (the representative proceedings) be heard together. I dismissed that motion in a judgment that was delivered on 25 October 1994 and I do not repeat what is said in that judgment. The effect of it, however, was that the Fuscton interests were excusea trom the further conduct of what has been described as the representative proceedings. Indeed, it is more accurate to say that the Fulton

interests have not been a party to those proceedings, since they

had opted out at an earlier stage.

While the ordinary rule is that costs would follow the event and while it is true that the motion filed by Mr Jacobson on behalf of NZI Capital Corporation Ltd failed, I do think that there are other circumstances that in this case warrant the cost being costs in the guarantee proceedings. The reason I take that view is that the litigation as a whole, by which I mean the representative proceedings and the guarantee proceedings, is of considerable complexity. There were very difficult procedural issues that needed to be resolved in the light of the Full Court's decisions in these matters. It was, I think, an appropriate course for Mr Jacobson's clients to bring both proceedings before the court with a suggestion that all matters