Harrison v Lidoform [1999] FCA 137 (17 February 1999)

Last Updated: 22 February 1999

FEDERAL COURT OF AUSTRALIA

Harrison v Lidoform [1999] FCA 137

STEPHEN HARRISON v LIDOFORM PTY LTD (RECEIVER AND MANAGER APPOINTED) & ORS

NG 649 OF 1998

HELY J

17 FEBRUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 649 OF 1998

BETWEEN:	STEPHEN HARRISON Applicant
AND:	LIDOFORM PTY LTD (RECEIVER AND MANAGER APPOINTED) & ORS Respondent
JUDGE:	HELY J
DATE OF ORDER:	17 FEBRUARY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant pay one half of the respondents' costs of the application for interlocutory relief heard on 4 and 5 November 1998.

2. The applicant pay the respondents' costs of the application to strike out the statement of claim and amended statement of claim heard on 4 and 5 November 1998.

3. The applicant pay the respondents' costs for the hearing on 17 February 1999 as follows:

* One half of the respondents' costs incurred by reason of argument concerning the application for interlocutory relief referred to above in Order 1.

* The respondents' costs incurred by reason of argument concerning the strike out application referred to above in Order 2.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 649 OF 1998

BETWEEN:	STEPHEN HARRISON Applicant
AND:	LIDOFORM PTY LTD (RECEIVER AND MANAGER APPOINTED) & ORS Respondent

JUDGE:	HELY J
DATE:	17 FEBRUARY 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1 On 24 November 1998 I gave reasons for my decision in relation to an application for interlocutory relief and in relation to an application to strike out the statement of claim in this matter. On 9 December 1998 I made orders giving effect to those reasons. One of the orders which I made was that the costs of the application for interlocutory relief and the costs of the application to strike out the statement of claim should be reserved. I have heard argument on the issue of costs this morning.

2 The interlocutory proceedings occupied two days. They were heard on 4 and 5 November 1998. I gave the applicant injunctive relief in a very narrow form. I think it is fair to say, that, in the correspondence which preceded the application, there was no request for undertakings confined to that narrow form, nor, for that matter, was there any offer of any undertaking to continue until the hearing. Rather, the respondents' attitude was that the applicant had no estate or interest in the relevant land, hence no undertaking was appropriate.

3 It was therefore necessary for the applicant to come to Court to get some interlocutory relief, but my recollection is that substantially the whole of the argument on 4 and 5 November ranged over the issue as to whether it should get relief in one or more of the broader forms that it sought, and on which it failed. That I think, is confirmed by an observation which appears at page 91 of the transcript.

4 I am therefore faced with a situation in which I should proceed upon the basis that the applicant needed to come to Court, but when the matter got to Court, substantially the whole of the time occupied was occupied by issues on which the applicant failed. In those circumstances there is a choice, in effect, between making cross orders for costs, which is always unsatisfactory, or making my own assessment as to where the balance lies.

5 I think I should make my own assessment of where the balance lies. In the circumstances, having regard to the factors which I have indicated, I think that I should, in the exercise of my discretion, make an order that the applicant pay one half of the respondents' costs of the application for interlocutory relief. That is intended to then give effect, as best I can in a rough and ready manner, to the finding that the applicant had to come to Court to get some relief, but once it got here, it failed on the issues which it agitated.

6 The second matter which was debated was a strike out application. It was instituted by a notice of motion filed on 31 July 1998. That notice of motion related to the statement of claim as originally formulated. But, by the time that it came before the Court, the issue which was agitated was the amended statement of claim. The substantial contest which was argued was whether the amended statement of claim was defective because it pleaded a case peculiar to Mr Harrison; rather than the case of the class purportedly represented.

7 That was, I think, the substantial issue between the parties. Page 141 of the transcript confirms that this is so. On that issue the applicant failed, and the respondent succeeded. Prima facie, I would think that the respondents ought to have their costs of that application. A number of propositions were advanced by Mr Hallen, for the applicant, against that conclusion and I propose to refer to two of them only. The first is that there is public benefit in the decision which I gave because I enunciated legal principles as to the way in which matters of this nature should be pleaded, which had not previously been articulated.

8 Even if that were so, I would not regard it as being a sufficient reason for departing from the ordinary rule as to costs. In any event it is not so, because the orders that I made and the reasons I gave were in conformity with a previous decision of Beaumont J to which I referred in my reasons. The second matter that Mr Hallen submitted is that there must be a certain amount of fluidity about proceedings of a representative character, because of the nature of those proceedings, and the peculiar problems that are attended upon them. That, I think, is a fair comment, but it really has nothing to do with the present application. The parties were content to stand and argue whether the amended statement of claim in the form that it was, having regard to the state of affairs as they then existed, was or was not defective by reason of the failure to plead the case of the class.

9 On that issue the respondent succeeded and the applicant failed. I therefore think that the applicant should pay the respondents' costs of the strike out application.

10 Regarding the costs of today's hearing, insofar as today consisted of a directions hearing, the costs will be costs in the proceedings. Insofar as today consisted of an argument upon costs, the costs of today will follow the result of the costs of the abovementioned applications. I proceed upon the basis that about half the time occupied related to the strike out motion and about half the time occupied related to the interlocutory injunction application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 17 February 1999

Counsel for the Applicant:	P Hallen SC
Solicitor for the Applicant:	Uther Webster & Evans
Counsel for the Fourth, Fifth and Seventh Respondents:	M J Leeming
Solicitor for the Fourth, Fifth and Seventh Respondents:	Mallesons Stephen Jaques
Date of Hearing:	17 February 1999
Date of Judgment:	17 February 1999