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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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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.