Access Training Group Ltd v Jane

Case [2024] NSWCA 204


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Access Training Group Ltd v Jane [2024] NSWCA 204
Hearing dates: 28 June 2024
Date of orders: 15 August 2024
Decision date: 15 August 2024
Before: Ward P at [1]; Payne JA at [201]; Basten AJA at [202]
Decision:

1.   Dismiss the appeal with costs.

2.   Grant leave to the cross-appellants to cross-appeal against the costs orders made in the respective proceedings.

3.   Allow the cross-appeal and set aside order (3) made in 2019/374869 and order (5) in 2020/219022 and in lieu thereof order:

(a)   in proceeding 2019/374869, leaving aside any previous interlocutory costs orders, that the plaintiff pay 75% of the costs of the defendants of the proceedings; and

(b)   in proceeding 2020/219022, leaving aside any previous interlocutory costs orders, that the defendant pay 75% of the costs of the plaintiff of the proceedings.

4.   Order the cross-respondents to pay the cross-appellants’ costs of the cross-appeal.

5.   Dismiss the cross-respondents’ motion as to incompetency of the cross-appeal with no order as to costs.

Catchwords:

CONTRACTS – Interpretation – Whether payments totalling $1.3 million were made by respondent to appellant as a loan – Whether evidence established common assumption between parties as to nature of sum – Whether private uncommunicated views inconsistent with asserted characterisation – Appeal dismissed

COSTS – Appeal from costs order of primary judge – Where primary judge ordered each party to bear own costs on the basis that the result was “mixed” – Where final result in proceedings was judgment in favour of AGT – Identification of relevant “event” for purposes of r 42.1 of Uniform Civil Procedure Rules 2005 (NSW) where result mixed – Apportionment of costs on an impressionistic basis – Proportionate reduction appropriate – Cross-appeal allowed

APPEALS – Where cross-appeal initially brought with respect to grounds other than strictly costs – Where substantive grounds subsequently fall away – Whether leave to appeal necessary

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Access Training Group Limited v James Michael Jane; Access Group Training Limited v Venture Capital Fund Australia Limited [2023] NSWSC 1416

Access Training Group Limited v James Michael Jane; Access Group Training Limited v Venture Capital Fund Australia Limited (No 2) [2023] NSWSC 1632

Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166, 169; [1988] FCA 225

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107

Browne v Dunn (1893) 6 R 67 (HL)

Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423

Cretazzo v Lombardi (1975) 13 SASR 4

Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd (No 3) [2023] NSWCA 316

Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373

Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20

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AGLC
Access Training Group Ltd v Jane [2024] NSWCA 204
Case
[2024] NSWCA 204
Decision Date

CaseChat Overview and Summary

The appeal before the Court of Appeal of New South Wales concerned a dispute between Access Training Group Ltd (AGT) and Jane, regarding whether payments totalling $1.3 million were made by Jane to AGT as a loan. AGT contended that the payments were not loans, while Jane argued they were. The primary judge had made orders in favour of AGT, but the costs order was that each party bear their own costs due to a "mixed" result.

The legal issues before the Court of Appeal were whether the primary judge erred in finding that the payments were not a loan, and whether the primary judge erred in the costs order. Specifically, the court had to determine if the evidence established a common assumption between the parties as to the nature of the sum, and whether private, uncommunicated views inconsistent with an asserted characterisation could override the objective assessment of the parties' intentions. The court also considered the appropriate approach to costs where the substantive result was mixed, and the application of rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW).

The Court of Appeal dismissed the appeal, finding no error in the primary judge's substantive findings. The court reasoned that the objective conduct and communications of the parties were determinative of their intentions, and private, uncommunicated views could not alter the characterisation of the transaction. Regarding costs, the court allowed the cross-appeal, holding that the primary judge's order for each party to bear their own costs was not appropriate given the overall judgment in favour of AGT. The court found that the "event" for the purposes of rule 42.1 was the final outcome, and that an apportionment of costs on an impressionistic basis was necessary.

Consequently, the appeal was dismissed with costs. Leave was granted to the cross-appellants to cross-appeal against the costs orders. The cross-appeal was allowed, setting aside the previous costs orders and substituting new orders that apportioned 75% of the costs in each proceeding to the losing party, leaving aside interlocutory costs. The cross-respondents were ordered to pay the cross-appellants’ costs of the cross-appeal.

Orders

Orders of the court

1. Dismiss the appeal with costs.

2. Grant leave to the cross-appellants to cross-appeal against the costs orders made in the respective proceedings.

3. Allow the cross-appeal and set aside order (3) made in 2019/374869 and order (5) in 2020/219022 and in lieu thereof order:

(a) in proceeding 2019/374869, leaving aside any previous interlocutory costs orders, that the plaintiff pay 75% of the costs of the defendants of the proceedings; and

(b) in proceeding 2020/219022, leaving aside any previous interlocutory costs orders, that the defendant pay 75% of the costs of the plaintiff of the proceedings.

4. Order the cross-respondents to pay the cross-appellants’ costs of the cross-appeal.

5. Dismiss the cross-respondents’ motion as to incompetency of the cross-appeal with no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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