Agricultural and Rural Finance Pty Limited v John Edward Atkinson
[2011] NSWSC 555
•09 June 2011
Supreme Court
New South Wales
Medium Neutral Citation: Agricultural and Rural Finance Pty Limited v John Edward Atkinson & Ors [2011] NSWSC 555 Hearing dates: 7 June 2011 Decision date: 09 June 2011 Jurisdiction: Equity Division - Commercial List Before: Einstein J Decision: See orders at paragraph 16
Catchwords: Costs Category: Costs Parties: Agricultural and Rural Finance Pty Limited (plaintiff)
John Edward Atkinson (1st defendant)
Peter Brakatselos (14th defendant)
Geoffrey Nevell Fredericksen (35th defendant)
Allan Patrick Holmes (52nd defendant)
Nicholas Charles Rowe (75th defendant)
Maria Francesca Russo (78th defendant)
David James Wardle (95th defendant)
Jennifer Dianne Wallace (124th defendant)
Franco Giannuzzi (149th defendant)
Gavin Winston Long (172nd defendant)
Maria Michael (177th defendant)
Maria Francesca Russo (189th defendant)
Christina Spyrakis (193rd defendant)
Oceania Agriculture Limited (second Cross defendant)Representation: Mr T Hale SC, Mr C Bevan (plaintiff)
Ms A Tsekouras (14th, 35th, 52nd, 75th, 78th, 95th, 124th, 149th, 172nd, 177th, 189th, 193rd defendants)
Mr P Condon (Oceania Agriculture Pty Ltd the second cross-defendant)
Evangelos Patakas & Associates (plaintiff)
Abadee Dresdner Freeman (14th, 35th, 52nd, 75th, 78th, 95th, 124th, 149th, 172nd, 177th, 189th, 193rd defendants)
Peter Condon & Associates (Oceania Agriculture Pty Ltd the second cross-defendant)
File Number(s): 2003/0092819
Judgment
Introduction
On 17 June 2010 the Court gave judgment in these proceedings ( the June 2010 judgment ). The parties were directed to bring in short minutes to give effect to those reasons and to address on costs: see [333] of June 2010 judgment.
The parties could not agree upon the terms of the short minutes or on costs. The Court heard evidence and submissions on the matters in dispute and gave judgment on 2 December 2010 (the December 2010 judgment). At [143] I ordered:
"The parties to bring in short minutes of order that deal with the entirety of these reasons."
Both groups of parties have prepared short minutes of order, which they submitted give effect to these reasons.
In a number of instances the parties have resolved their differences but other differences remain.
The areas in respect of which the parties are now in agreement
The parties are now in agreement in relation to the following matters :
(1) Judgment be entered for the plaintiff against each of the defendants ( the ADF defendants ) listed in the schedule below ( the Schedule ) in the amount stated beside the name of that ADF defendant in the column headed "Judgment Amount".
Schedule
Defendant no
Cross claim no
Name
Total per defendat
14
76
Peter Brakatselos
$ 77,507.75
35
109
Geoffrey Frederickson
$ 36,271.77
52
111
Allan Holmes
$ 40,061.57
75
85
Nicholas Rowe
$ 80,123.14
78/189
75
Maria Russo
$ 80,123.14
95
39
David Wardle
$ 1,229,484.56
124
73
Jennifer Wallace
$ 31,958.80
149
106
Franco Giannuzzi
$ 100,809.81
172
128
Gavin Long
$ 136,461.12
177
48
Maria Michael
$ 96,807.07
193
98
Cristina Spyrakis
$ 102,933.01
(2) The cross-claims filed by the ADF defendants in the proceedings, being the cross claims listed in the Schedule ( the cross-claims ), be dismissed.
Areas in respect of which the Court makes findings
Following the close argument concerning the plaintiff's claim to indemnity costs in relation to today's application, the principled exercise of the material discretion is to order as follows :
(1) that the parties represented by Ms Tsekouras pay the costs of the plaintiff incurred by reason of the defendants having withdrawn their contentions concerning the pre- determination interest to which the plaintiff was entitled;
(2) otherwise that the parties pay their own costs of the applications pursued on 7 June 2011.
The application by the defendants to rely upon an affidavit of Mr Forsyth sworn on 7 June 2011 is not acceded to. The principled exercise of the relevant discretion is for the court to refuse to admit that evidence as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff and/or cause or result in undue waste of time.
Further, the execution of the judgments in order 1 is to be stayed for a period of 40 days from the date of these orders.
Order 4 in the plaintiff's short minutes of order concerned the second cross- defendant and not the plaintiff. Mr Condon, on behalf of the second cross-defendant, adopted the plaintiff's submissions in respect of order 3. For the same reasons as making that order, it is appropriate to make order 4.
Turning to the substantial content
The contest litigated appeared to be:
(1) The plaintiffs claim that subject to order 5, the ADF defendants pay the plaintiff's costs of and incidental to the proceedings on the summons and the cross-claims on a joint and several basis and on the usual basis subject to the plaintiff not recovering against the ADF defendants any costs which it has already recovered by way of settlements with other defendants inclusive of costs.
(2) The defendants' alternative claim that subject to Order 4, the subject defendants pay the plaintiff's costs (as plaintiff and as first cross-defendant in the cross-claims) and the costs of the second cross-defendant all as agreed or assessed on the ordinary basis provided that there shall be excluded from the costs so payable any costs not referrable to or appropriately apportionable to the proceedings against the subject defendants or the cross-claims of the subject defendants, including without limiting the generality of the foregoing any costs referrable to or appropriately apportionable to:
(a) the Gardiner Test Case;
(b) any defendant against whom the plaintiff has discontinued the proceedings or in respect of whom judgment has been entered in favour of the defendant (or in respect of whom the plaintiff has consented to such judgment being entered) or in respect of whom service on the defendant of the plaintiff's summons has been set aside; and
(c) any defendant with whom the plaintiff has agreed (or the plaintiff and the second cross-defendant have agreed) to settle the claims of the plaintiff by payment of an amount stated to be "inclusive of costs" or otherwise on a basis where the parties' agreement was or is that the plaintiff (or the plaintiff and the second cross-defendant) would not recover any separate amount from any such defendant on account of costs
It is appropriate to note that the defendants alternate claim has a number of problems, not the least of which concerns the difficulty which would face any costs assessor in terms of understanding precisely what that claim amounted to.
It is particularly important to note that in the December 2010 judgment, the Court ordered that the parties were to bring in Short minutes of order that dealt with the entirety of the reasons then handed down.
I accept the plaintiff's submission that the defendants are at fault in wishing re-agitate issues that have now been resolved by judgments of the Court.
Relevantly and as the plaintiff has submitted :
At [7] - [101] of the December 2010 judgment the Court determined all costs questions arising for determination. Relevantly the Court:
(a) Rejected the defendants' submission that a " per defendant costs order should be made" : [71] - [82], [78].
(b) Ordered at [78] that:
"... I order that the defendant pay the costs of the plaintiff of and incidental to the proceedings on the Summons, and also the costs of the two cross-defendants of the proceedings on the cross-claims (the plaintiff and OAL), on the usual basis, not an indemnity basis."
(c) There should not be double recovery of costs: [79].
(d) At [81]:
"In my view the double-recovery issue can be dealt with simply by ordering that any costs which the plaintiff has already recovered by way of settlements inclusive of costs must be subtracted from the costs that would otherwise be assessed as being recoverable by it against the defendants."
Importantly during the hearing which took place on June 7 the Court required the plaintiff to give the following undertaking :
An undertaking that the solicitor for the plaintiff file and serve on the costs assessor assessing the costs recoverable under Order 3 above and on the solicitor for ADF defendants, such material and explanations as the costs assessor may require in order to give effect to the requirement in order 3 that there be no double/ recovery of costs by the plaintiff against the ADF defendants under order 3 above.
Orders
Consequently, the Court makes the following orders :
(1) Judgment be entered for the plaintiff against each of the defendants ( the ADF defendants ) listed in the schedule below ( the Schedule ) in the amount stated beside the name of that ADF defendant in the column headed "Total per defendant".
Schedule
Defendant no
Cross- claim no.
Name
Total per defdnant
14
76
Peter Brakatselos
$ 77,507.75
35
109
Geoffrey Frederickson
$ 36,271.77
52
111
Allan Holmes
$ 40,061.57
75
85
Nicholas Rowe
$ 80,123.14
78/189
75
Maria Russo
$ 80,123.14
95
39
David Wardle
$ 1,229,484.56
124
73
Jennifer Wallace
$ 31,958.80
149
106
Franco Giannuzzi
$ 100,809.81
172
128
Gavin Long
$ 136,461.12
177
48
Maria Michael
$ 96,807.07
193
98
Cristina Spyrakis
$ 102,933.01
(2) The cross-claims filed by the ADF defendants in the proceedings, being the cross claims listed in the Schedule ( the cross-claims ), be dismissed.
(3) Subject to order 6, the ADF defendants pay the plaintiff's costs of and incidental to the proceedings on the summons and the cross-claims on a joint and several basis and on the usual basis subject to the plaintiff not recovering against the ADF defendants any costs which it has already recovered by way of settlements with other defendants inclusive of costs.
(4) The ADF defendants pay the costs of the second cross defendant (Oceania Agriculture Pty Limited) of the cross-claims on a joint and several basis and on the usual basis.
(5) The solicitor for the plaintiff file and serve on the costs assessor assessing the costs recoverable under order (3) above and on the solicitor for the ADF defendants such material and explanations as the costs assessor may require in order to give effect to the requirement in order (3) that there be no double recovery of costs by the plaintiff against the ADF defendants under order (3) above.
(6) That the parties represented by Ms Tsekouras pay the costs of the plaintiff incurred by reason of the defendants having withdrawn their contentions concerning the pre- determination interest to which the plaintiff was entitled;
(7) Otherwise that the parties pay their own costs of the applications pursued on 7 June 2011;
(8) Execution of the judgments in paragraph 1 be stayed for a period of 40 days from the date of these orders.
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Decision last updated: 09 June 2011
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