Elitegold P/L v. Australia Fair Shopping Centres P/L & Ors [1994] FCA 962

JUDGMENT No. wat DE.

IN THE FEDERAL COURT OF AUSTRALIA

) ) W. ISTRICT REGIS ) No NGS5S5 of 1992 ) GENERAL DIVISION )

BETWEEN: ELITEGOLD PTY LIMITED Applicant

AND: AUSTRALIA FAIR SHOPPING CENTRES PTY LIMITED Second Respondent

CM HOLDINGS PTY LTD Fourth Respondent

c VELOPM s Fifth Respondent

First Respondent (proceedings discontinued)

Third Respondent (proceedings discontinued)

RECEIVED 12 DEC 1994

FEDERAL COURT OF

AUSTRALIA

PRINCIPAL REGISTRY

Sixth Respondent (application dismissed by consent)

Seventh Respondent - (application dismissed by consent)

: HILL J PLACE: SYDNEY

16 NOVEMBER 1994

On 28 October last I gave judgment in this matter dismissing the application brought by Elitegold Pty Limited, but declined, at that time, to make any order for costs

pending further argument. I said:

"Although the respondents had been successful overall, considerable time was spent at the trial on evidence which went to the issue whether the respondents had contravened s.52 of the act, an issue upon

which Elite has succeeded. IU will accordingly stand over the application to a date to be fixed to hear _ such submissions the parties may wish to make on the questions of costs."

The applicants have drawn my attention to a number of issues upon which they succeeded and have submitted that, if the respondents had confined themselves to the issues upon which they ultimately succeeded, only a small fraction of the

amount of time would have actually been needed.

The principles upon which costs are to be awarded are not really in dispute. They are dealt with in the well- known passage from the judgement of Toohey J in Hughes v

ali i ci n n (1986) ATPR 48,134 where his Honour summarised the relevant decisions to

that point in the following way (at 48,136):