Barron River Foods Pty Ltd & Australian Food Processors Pty Ltd v National Australia Bank Limited [2005] QSC 138

SUPREME COURT OF QUEENSLAND CITATION: Barron River Foods Pty Ltd & Australian Food Processors Pty Ltd v National Australia Bank Limited [2005] QSC 138 PARTIES: BARRON RIVER FOODS PTY LTD (ACN 055 933 483) and AUSTRLIAN FOOD PROCESSORS PTY LTD (ACN 010 936 928) (applicants) v NATIONAL AUSTRALIAN BANK LIMITED (ACN 004 044 937) (respondent) FILE NO/S: 294 of 2004 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Cairns DELIVERED ON: 20 May 2005 DELIVERED AT: Cairns HEARING DATE: Written submissions JUDGE: Jones J ORDER: No order for costs COUNSEL: Mr C Ryall for the applicants Ms C Muir for the respondent SOLICITORS: William Royds Lawyers for the applicants Mallesons for the respondent [1] Following the delivery of judgment in this matter I received a submission from the applicants seeking an order for costs in their favour. The applicants rely upon the usual rule that costs should follow the event. See r 689 UCPR. The seek to support the submission by reference to the respective conduct of the parties suggesting that the respondent was the more culpable in not bringing forward evidentiary material in a timely way. [2] The respondent challenges the accuracy of some of the assertions made by the applicant and counters by suggesting that it was the applicant’s initial material that gave rise to the difficulty in determining the nature and scope of the dispute. [3] I have considered the submissions made by both parties which, in the end result, confirms in my mind that the preliminary view I expressed in the judgment. The primary cause of the difficulties in adducing evidence was the applicant’s failure to identify with precision the areas of dispute. Therefore on the principal issue I am -- 1 of 2 -- 2 satisfied that costs should not follow the event and that the most appropriate order is that there be no order for costs. [4] Prior to the final hearing I had reserved costs on two occasions. On 2 August 2004 the applicants requested and were granted an adjournment. The respondent sought an order for costs thereby thrown away. At the adjourned hearing on 7 September 2004 the respondents sought, and were granted, an adjournment to enable them to file further evidence. The applicants sought costs of that adjournment. [5] Having considered all the material, there would be a basis for ordering that the costs of the first adjournment be paid by the applicants and the costs of the second be paid by the respondent. In my view there is unlikely to be any significant difference in the quantum of each set of costs, certainly not sufficient to justify the further costs of arranging for two independent assessments. [6] On balance then, in respect of the reserved costs, I make no order for costs. -- 2 of 2 --