McHattan, Geoffrey James v Saramoa Charters Pty Ltd & Ors [1996] FCA 891

CATCHWORDS APPEAL - challenge to trial judge's finding of fact - functions of appellate court - findings based upon credibility of witnesses. APPEAL - disconformity between the case pleaded and the case on which trial judge made findings. CONTRACT - sale of business - whether tractor and trailer integral part of business - business sold "lock stock and barrel" - whether mistake as to subject matter of contract. COSTS - order for costs on indemnity basis - whether rejection of reasonable offer of settlement should attract costs sanction - whether factual error tainted the exercise of the discretion as to costs. Warren v Coombes (1979) 142 CLR 531 Devries v Australian National Railways Commission (1993) 112 ALR 641 Taylor v Johnson (1982-83) 151 CLR 422 In re Butlin's Settlement Trusts [1976] 1 CH 251 Water Board v Moustakas (1987) 180 CLR 491 Re Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd 81 ALR 397 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, 5 March 1993) GEOFFREY JAMES McHATTAN v SARAMOA CHARTERS PTY LTD & ORS No. QG 56 of 1995 SPENDER, FOSTER and BRANSON JJ BRISBANE 17 SEPTEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY No. QG 56 of 1995 GENERAL DIVISION ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : GEOFFREY JAMES McHATTAN Appellant AND : SARAMOA CHARTERS PTY LTD (A.C.N. 054 326 064) First Respondent AND : WILLIAM STUART HILL Second Respondent AND : KAYE PATRICIA HILL Third Respondent

CORAM: SPENDER, FOSTER and BRANSON JJ PLACE: BRISBANE DATE: 17 SEPTEMBER 1996 MINUTES OF ORDER THE COURT ORDERS THAT: 1. In lieu of the costs order of Kiefel J of 5 April 1995, the appellant pay the costs of and incidental to the action including reserved costs, if any, to be taxed. 2. Otherwise, the appeal be dismissed. 3. The appellant pay the costs of the respondents of the appeal, to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.