Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 203 (11 August 2004)

Last Updated: 11 August 2004

FEDERAL COURT OF AUSTRALIA

Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 203

Federal Proceedings (Costs) Act 1981 (Cth) s 6


















DRESNA PTY LTD v MISU NOMINEES PTY LTD, KANDARA PTY LTD, LINKNARF MANAGEMENT SERVICES PTY LTD (IN LIQUIDATION) FORMERLY FRANKLINS MANAGEMENT SERVICES PTY LTD, LINKNARF LIMITED (IN LIQUIDATION) FORMERLY FRANKLINS LIMITED, COLES MYER LIMITED
V277 OF 2004





KIEFEL, MARSHALL AND JACOBSON JJ
SYDNEY (HEARD IN MELBOURNE) (VIA VIDEO LINK TO MELBOURNE)
11 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V277 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DRESNA PTY LTD (ACN 097 346 784) APPELLANT
AND:	MISU NOMINEES PTY LTD (ACN 004 986 001) FIRST RESPONDENT KANDARA PTY LTD (ACN 005 524 943) SECOND RESPONDENT LINKNARF MANAGEMENT SERVICES PTY LTD (IN LIQUIDATION) FORMERLY FRANKLINS MANAGEMENT SERVICES PTY LTD THIRD RESPONDENT LINKNARF LIMITED (IN LIQUIDATION) FORMERLY FRANKLINS LIMITED (ACN 000 929 902) FOURTH RESPONDENT COLES MYER LIMITED FIFTH RESPONDENT

JUDGES:	KIEFEL, MARSHALL AND JACOBSON JJ
DATE OF ORDER:	11 AUGUST 2004
WHERE MADE:	SYDNEY (HEARD IN MELBOURNE) (VIA VIDEO LINK TO MELBOURNE)

THE COURT ORDERS THAT:

1. The third, fourth and fifth respondents pay the appellant’s costs of the appeal.
2. The appellant pay the first and second respondents’ costs of the appeal.
3. The appellant pay the costs thrown away by the amendments allowed on appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V277 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	DRESNA PTY LTD (ACN 097 346 784) APPELLANT
AND:	MISU NOMINEES PTY LTD (ACN 004 986 001) FIRST RESPONDENT KANDARA PTY LTD (ACN 005 524 943) SECOND RESPONDENT LINKNARF MANAGEMENT SERVICES PTY LTD (IN LIQUIDATION) FORMERLY FRANKLINS MANAGEMENT SERVICES PTY LTD THIRD RESPONDENT LINKNARF LIMITED (IN LIQUIDATION) FORMERLY FRANKLINS LIMITED (ACN 000 929 902) FOURTH RESPONDENT COLES MYER LIMITED FIFTH RESPONDENT

JUDGES:	KIEFEL, MARSHALL AND JACOBSON JJ
DATE:	11 AUGUST 2004
PLACE:	SYDNEY (HEARD IN MELBOURNE) (VIA VIDEO LINK TO MELBOURNE)

REASONS FOR JUDGMENT
(COSTS)

KIEFEL, MARSHALL AND JACOBSON JJ:

1 In the application for leave to amend before his Honour the primary Judge Dresna Pty Ltd (‘Dresna’) was successful in part. His Honour ordered that Dresna pay each of the respondent’s costs of the application and the costs thrown away by the amendments. The costs were ordered to be taxed and paid forthwith. His Honour did not give reasons for these orders. It might be that they reflect that Dresna had not been altogether successful, although it appears no allowance was made for the measure of success it did have. Another factor, to which his Honour adverts in his reasons on the substantive application, and which may have been influential as to costs, is the history of the matter. Dresna had by this time made many applications to amend its pleading.

2 On the appeal Dresna succeeded on all issues but one, that which affects the lessor, the first and second respondents. The other respondents argued against the amendments affecting them at some length.

3 There would seem to be no reason to deny Dresna its costs of the appeal against the third, fourth and fifth respondents, given its success. The time taken on the argument on the unsuccessful issue does not persuade us to the contrary. There is no merit in the argument that this Court should postpone a decision on costs pending a determination as to whether the issues are successful. That was not the question before this Court. The question was whether they were at least arguable.

4 The exception to this order concerns the lessor respondents. Dresna did not succeed on its application to plead one further matter against them. They were not involved in the other issues on the appeal. Dresna ought to pay their costs of the appeal, as it concedes.

5 As to the costs of the application below, we are not persuaded that they ought to be revisited. There is no basis for interfering with the order concerning the lessor’s costs. And it seems to us that the history of the matter was likely to have been influential in his Honour’s approach to costs generally. The only addition that is necessary to that order is that Dresna pay the costs thrown away by further amendments allowed on appeal.

6 The Franklins respondents, the third and fourth respondents, seek a certificate for costs under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). We do not think this is an appropriate case for the exercise of that discretion. There could be no doubt in the parties’ minds as to the correct rule of law to be applied on an application for leave to amend. It was simply whether there was an arguable case.

7 There will be orders accordingly.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Marshall and Jacobson.

Associate:



Dated: 11 August 2004

Counsel for the Appellant:	R M Garratt QC with TJF McEvoy
Solicitors for the Appellant:	Foster Hart Lawyers
Counsel for the First and Second Respondents:	M M Gordon SC
Solicitors for the First and Second Respondents:	Arnold Bloch Leibler
Counsel for the Third and Fourth Respondents:	M J Colbran QC with G J Fitzgerald
Solicitors for the Third and Fourth Respondents:	Home Wilkinson Lowry
Solicitors for the Fifth Respondents:	Allens Arthur Robinson
Date of Hearing:	24 May 2004
Date of Judgment:	11 August 2004