PETER ROBERT HORROBIN and ANOR v AUSTRALIA and NEW ZEALAND BANKING GROUP LTD [1996] NSWCA 251

PETER ROBERT HORROBIN and ANOR v AUSTRALIA and NEW ZEALAND BANKING GROUP LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 24 and 28 February 1997, 6 June 1997

[1996] NSWCA 251

Priestley JA The principal contestants in the motions before me are Mr P Horrobin and Mr R Sands on the one side and ANZ Banking Group Ltd (ANZ) on the other. The motions raise two sets of issues. One is whether Messrs Horrobin and Sands (whom I will call H and S for shortness' sake) should be allowed to enforce against ANZ costs orders made against it in summary judgment proceedings in which ANZ was unsuccessful before the conclusion of the principal proceedings still pending between H and S and ANZ. The other issue is whether an order should now be made for the costs of a motion which, in the way the proceedings turned out which were the subject of the costs orders, was never heard or decided.

For a reader to understand the nature of the considerations I must bear in mind in exercising discretion in deciding these motions, I need to set out in a simplified form what, in detail, would be quite a lengthy history. In doing

so I will not give the names of all the parties involved in the various stages of the various litigations or the full names of those parties I do mention. Mrs Horrobin was a party to the proceedings. Her position is substantially the same as that of H, and I will leave separate mention of her until later.

In 1987 H and S were principal persons concerned in the acquisition of a business called Trawl Industries. In taking part in the acquiring of this business, H and S participated in the borrowing of funds from the National Mutual Royal Bank (NMRB). In later litigation they claimed that in the course of the borrowing they acted on representations made by ANZ.

The business failed. In 1989 Trawl Industries began proceedings in the New South Wales Supreme Court against a company called Effem Foods on a number of bases, including breach of contract. This part of Trawl Industries' case alleged that Effem Foods had caused it considerable damage by Effem Foods' wrongful repudiation of an agreement for the purchase of Trawl Industries' products. This part of the proceedings was heard and dismissed by Cole J in 1989. Trawl Industries then appealed to the Court of Appeal.