Energy World Corporation Ltd v Maurice Hayes & Associates Pty Ltd

THE COURT 1 We gave judgment in this matter on 21 March 2007: see Energy World Corporation Ltd v Maurice Hayes & Associates Pty Ltd [2007] FCAFC 34. There is disagreement between the parties as to what orders should be made. Three issues need to be resolved: (1) Whether the costs order below should be varied. (2) Whether the costs should be adjusted as provided in O 62 r 36A of the Federal Court Rules or taxed in accordance with the scale applicable to proceedings in the District Court of Western Australia. (3) The costs of the cross-appeal. 2 The trial judge awarded Maurice Hayes & Associates Pty Ltd, the respondent/cross-appellant to this appeal (the applicant below), 85 per cent of its costs of the application. This application remained substantially successful notwithstanding the success of the appellant/cross-respondent, Energy World Corporation Ltd, on the question of the proper construction of clause 8.6 of the agreement between the parties which deprived Maurice Hayes & Associates Pty Ltd of some of the fruits of the judgment below. Energy World Corporation Ltd now submits that no costs order of the trial should be made in favour of Maurice Hayes & Associates Pty Ltd. In effect, the submission is that each party should bear their own costs of the trial. That submission is untenable. Maurice Hayes & Associates Pty Ltd accepts there should be some readjustment of the costs order below and suggests that the figure should be 75 per cent of its costs. For the reasons advanced by Maurice Hayes & Associates Pty Ltd, that appears a reasonable figure. It is pointed out that the issue upon which Energy World Corporation Ltd succeeded was only raised by the primary judge after trial and had little effect upon costs. In the face of Energy World Corporation Ltd not identifying a lesser figure and justifying the computation, we accept the figure proposed by Maurice Hayes & Associates Pty Ltd, which should receive 75 per cent of its costs of the trial. 3 The question of taxation in accordance with the District Court scale was not raised at the trial. The submission of Energy World Corporation Ltd that such an order should be made should not be entertained in the appeal. Furthermore, the premise that demands should have been split and an action brought in the District Court is not sound. All related claims should be dealt with in the one proceeding where possible. 4 As to the cross-appeal, we intended by our observations at [36] that Energy World Corporation Ltd should have half its costs of the combined costs of the appeal and cross-appeal and Maurice Hayes & Associates Pty Ltd have no costs of either the appeal or cross-appeal. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Tamberlin and Gyles.