GREENWOOD AND WHITE JJ:
2 On 1 September 2017, the Court published orders and reasons for judgment in support of those orders in four appellate proceedings heard together (QUD 923 of 2015, QUD 924 of 2015, QUD 925 of 2015 and QUD 1002 of 2015): Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd [2017] FCAFC 141.
3 The orders provided for a timetable for the submission by the parties of proposed final orders giving effect to the reasons for judgment in support of each appeal and the filing and serving of written submissions in relation to the costs of and incidental to each appeal and any proposed orders in relation to costs of the primary proceeding.
4 It should be noted that in appeal QUD 923 of 2015, the appellant, Oliver Hume South East Queensland Pty Ltd ("OHSEQ"), sought an order that the first respondent Investa Residential Group Pty Ltd ("Investa Residential") pay OHSEQ's costs of and incidental to the principal proceeding (QUD 231 of 2011) including any reserved costs. This was the only appeal in which any order was sought, from the Full Court, concerning the costs in relation to the principal proceeding. It should also be noted that the primary Judge made orders for the determination of questions concerning duties owed (by whom and to whom) separately from the question of the remedies to be granted or awarded in respect of any proven breach. Thus, critical elements of the causes of action are yet to be determined by the primary Judge. As to the other three appeal proceedings and the cross-appeal by Mr Adam Kimberly Barclay in QUD 924 of 2015, the appellant or appellants (and in the case of the cross-appeal, the cross-appellant), sought an order in their favour for the costs of and incidental to the appeal (and cross-appeal).
5 These proceedings are concerned with the determination of the final orders to be made in each appeal and the disposition of the costs.
6 We have had regard to the reasons for judgment, the written submissions of the parties and each of the notices of appeal and in the case of QUD 924 of 2015 the cross-appeal and related material.
7 There is no utility in reciting in these reasons the text of each of the orders made today. It is sufficient to identify the following matters.
8 First, the appeals are concerned with grounds relied upon and contentions made concerning the question of whether the primary Judge erred in making, on 10 September 2015, any of Declarations 1 to 5 and any of Orders 1 to 7. As we said in the reasons for judgment, the question of remedy is yet to be determined by the primary Judge. One of the matters agitated before the Full Court was a question of whether the primary Judge erred in making a finding that the market value of Lot 191 at 25 June 2010 was $290,000. Another matter agitated before the Full Court was whether the primary Judge erred in finding that there was no evidence, or no sufficient evidence, to support a finding that Lot 170 had a greater value than the price paid by Two Eight Two Nine Pty Ltd of $1,454,545 exclusive of GST.
9 In the reasons for judgment, we observed that questions of value and valuation only go to the quantification of the claim and that it would be premature for the Full Court to express a view on those findings and those issues more generally: [25], [26], [383], [384], [417]. As we said in the reasons for judgment, no party contended that the Court could presently determine, in the appeal proceedings, questions of valuation. That position no doubt arose because, first, there was no "order" appealed from to which the assessments of value related and, second, questions of relief were separated out by the primary Judge for later determination.
10 The primary Judge will in due course determine questions of remedy and it may be that the findings of the primary Judge in relation to value concerning each Lot will be challenged if and when a challenge is made to a dispositive order or a declaration concerning a remedy which engages the factual question of valuation.
11 That is why Order 1 in QUD 923 of 2015; Order 3 in QUD 924 of 2015; and Order 1 in QUD 925 of 2015 recite that the matters the subject of the relevant grounds as recited in those orders concerning the value of, and loss, if any, arising from the sale of Lots 170 and 191 are matters the primary Judge may consider in determining the separate issue of remedy.
12 The second matter of principle concerns the exercise of the discretion as to costs. The fundamental principle guiding the exercise of the discretion under s 43 of the Federal Court of Australia Act 1976 (Cth) is that "the award is discretionary but generally that discretion is exercised in favour of the successful party": Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52, Gleeson CJ, Gummow, Hayne and Crennan JJ at [25]. Of course, all of the relevant circumstances need to be weighed in the exercise of the discretion and we have taken into account the features of each appeal and the resolution of each appeal according to the reasons for judgment. The orders as to the costs of and incidental to each appeal (and the cross-appeal) are the expression of that weighing. As to the determination of the costs of and incidental to the separate questions before the primary Judge having regard to the final orders made on the substantive grounds of appeal (and cross-appeal), we make no order as to those costs because the primary Judge is yet to determine finally the ultimate merits or otherwise of the competing claims and cross-claims. The costs of the principal proceeding ought to be determined by the primary Judge having regard to the final orders made in disposition of the principal proceeding.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Greenwood and White.