Radferry Pty Ltd v Starborne Holdings Pty Ltd [1999] FCA 171 (2 March 1999)

Last Updated: 3 March 1999

FEDERAL COURT OF AUSTRALIA

Radferry Pty Ltd v Starborne Holdings Pty Ltd [1999] FCA 171

RADFERRY PTY LTD & ANOR v STARBORNE HOLDINGS PTY LTD & ORS

QG 37 of 1998

COOPER, MARSHALL, DOWSETT JJ

2 MARCH 1999

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 37 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RADFERRY PTY LTD (A.C.N. 011 018 867) First Appellant LOUIS ZENONOS, SAM ZENONOS AND JOHN ZENONOS Second Appellants
AND: AND BETWEEN: AND:	STARBORNE HOLDINGS PTY LTD (A.C.N. 071 108 453) Respondent STARBORNE HOLDINGS PTY LTD (A.C.N. 071 108 453) Cross-Appellant RADFERRY PTY LTD (A.C.N. 011 018 867) First Cross-Respondent LOUIS ZENONOS, SAM ZENONOS AND JOHN ZENONOS Second Cross-Respondents
JUDGES:	COOPER, MARSHALL & DOWSETT JJ
DATE OF ORDER:	2 MARCH 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The orders as to costs made on 18 December 1998 stand.

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 37 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	RADFERRY PTY LTD (A.C.N. 011 018 867) First Appellant LOUIS ZENONOS, SAM ZENONOS AND JOHN ZENONOS Second Appellants
AND: AND BETWEEN: AND:	STARBORNE HOLDINGS PTY LTD (A.C.N. 071 108 453) Respondent STARBORNE HOLDINGS PTY LTD (A.C.N. 071 108 453) Cross-Appellant RADFERRY PTY LTD (A.C.N. 011 018 867) First Cross-Respondent LOUIS ZENONOS, SAM ZENONOS AND JOHN ZENONOS Second Cross-Respondents

JUDGES:	COOPER, MARSHALL & DOWSETT JJ
DATE:	2 MARCH 1999
PLACE:	BRISBANE

SUPPLEMENTARY REASONS FOR JUDGMENT

THE COURT:

1 On 18 December 1998 the Court published its reasons for allowing the appeal and cross-appeal in this matter. For present purposes it is relevant to note only that the second appellants, Louis Zenonos, Sam Zenonos and John Zenonos (the "Radferry directors") had appealed against the award of damages against them in favour of Starborne Holdings Pty Ltd ("Starborne") in the amount of $174,268.47 with interest. By the cross-appeal Starborne asked that this Court set aside certain findings of fact made by the learned trial judge and increase the award against the Radferry directors to an amount in the order of $290,000. The Court reduced the award to $90,000 plus interest. In giving judgment we proposed that Starborne should pay the Radferry directors' costs of the appeal and cross-appeal. However, as the parties had not had an opportunity to make submissions as to costs, we gave leave to deliver written submissions. Starborne made submissions resisting the proposed order and the Radferry directors responded thereto.

2 In effect, Starborne submitted that it was not responsible for the errors made by the learned trial Judge. It submitted that it had led the evidence upon which this Court acted in fixing quantum, possibly implying that at first instance, it had advanced an appropriate basis for calculating damages. It also pointed out that the Radferry directors had asserted by their notice of appeal that there was no evidence upon which any award against them could be calculated, although in the event, Starborne maintained its judgment, albeit for a reduced amount. In those circumstances Starborne submitted that it should have its costs of the appeal as against the Radferry directors and that there should be no order as to the costs of the cross-appeal.

3 We are not presently considering the costs of the trial. The argument relates only to the costs of the appeal and cross-appeal as between Starborne and the Radferry directors. The Radferry directors were substantially successful in that they resisted any increase in the award against them as sought by way of cross-appeal and managed to have that award substantially reduced pursuant to their appeal. It is impossible to describe them otherwise than as the successful parties. In general, the rule is that costs follow the event. Had the Radferry directors, by their conduct of the appeal and cross-appeal, substantially extended the range of issues litigated or the length of time taken to ventilate them, the order for costs would have been tailored to reflect that fact. The appeal and cross-appeal identified errors of fact and law in his Honour's calculation of damages, compelling this Court to undertake recalculation of the damages award on the evidence. Little else was involved. We are unable to conclude that the conduct of the appeal and cross-appeal by the Radferry directors in any way increased the cost of proceedings or lengthened the time taken in argument. In those circumstances, costs should follow the event. The Court adheres to the orders proposed in the reasons published on 18 December 1998.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 2 March 1999

Counsel for the Applicant:	Mr R.V. Hanson QC and Mr M.M. Varitimos
Solicitor for the Applicant:	Bateman Makridakis
Counsel for the Respondent:	Mr J.C. Bell QC
Solicitor for the Respondent:	Burns Jameson
Date of Hearing:	12 November 1998
Date of Judgment:	2 March 1999