McCallum (aka Hain) v National Australia Bank Ltd (No 2)

SHELLER JA: I agree with Heydon JA.

FITZGERALD JA: I agree with Heydon JA.

HEYDON JA: The appellant, pursuant to leave requested and granted when judgment was delivered on 17 August 2000, has filed written submissions contending that despite the dismissal of the appeal, there ought to be no order as to costs. The starting point of these submissions is that though the Court of Appeal affirmed the decision of Master Harrison, it did so on grounds different from those relied on by the Master.

In my opinion the reasoning of this Court was not sufficiently different from that of Master Harrison to justify any special order as to costs. Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359, in which Dixon J delivered the leading judgment concurred in by Starke J, McTiernan J and in substance Evatt J, was central to the approaches of both the Master and this Court.

I would dismiss the application that there be no order as to costs with costs.

The order of the court as to the costs of the appeal should thus be that the appellant pay the respondent’s costs (including the costs of this application).