Silkfield Pty Ltd v Wong, James & Ors for and on behalf of themselves and as representatives of the group referred to in the application [1998] FCA 1645

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 8 of 1998

on appeal from a judge of the federal court of australia

BETWEEN: silkfield pty ltd

ACN 070 910 744

Appellant

AND: james wong and janice wong and roy julian flight (for and on behalf of themselves and as representatives of the group referred to in the application)

Respondents

JUDGES: OÕLOUGHLIN and DRUMMOND JJ

DATE OF ORDER: 17/12/98

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The respondents pay the appellantÕs costs of the appeal.

2. The costs order of Spender J of 16 January 1998 be set aside but only in so far as that order applies to the costs of the issues raised in paragraphs 1, 2, 3, 4, 5, 7 and 8 of the notice of motion filed 5 December 1997.

3. The respondents pay the appellantÕs costs of and incidental to the said notice of motion in so far as it raised for determination the issues in paragraphs 1, 2, 3, 4, 5, 7 and 8.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 8 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SILKFIELD PTY LTD

ACN 070 910 744

APPELLANT

AND: JAMES WONG AND JANICE WONG AND ROY JULIAN FLIGHT (for and on behalf of themselves and as representatives of the group referred to in the application)

RespondentS

JUDGES: OÕLOUGHLIN AND DRUMMOND JJ

DATE: 17/12/98

PLACE: brisbane

REASONS FOR JUDGMENT

OÕLOUGHLIN AND DRUMMOND JJ:

When the Court delivered judgment on 20 November last in favour of the appellant, the question of what should be done about the costs of the appeal was adjourned to give the parties the opportunity of making written submissions.

The respondents submit that there should be no order in respect of the costs of the appeal, firstly, because the matter came before the Court in the form of an application by the appellant for leave to appeal out of time, an application said to have been allowed Òas a matter of indulgenceÓ, and, secondly, because leave having been granted, the appeal only succeeded on a point not raised in the draft notice of appeal filed with the application for leave.