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Allen v Wilson (No 2)

Allen v Wilson (No 2)

Case [2023] ACTSC 102 5 May 2023

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Allen v Wilson (No 2)
Citation:	[2023] ACTSC 102
Hearing Date:	On the papers
Decision Date:	5 May 2023
Before:	McWilliam J
Decision:	Order 7 of the orders made on 27 January 2023 is varied to read:
(7) The defendants are to pay 75 percent of the plaintiffs’ costs

of the proceedings.

Catchwords:	COSTS – where costs follow the event – where plaintiffs enjoyed mixed success on multiple causes of action – where part of the plaintiffs’ success involved a grant of equitable relief that was not
pleaded – proportionate costs awarded
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1721
Cases Cited:	Allen v Wilson [2023] ACTSC 10 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 Cooper v Singh [2017] ACTCA 21
EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty
Ltd [2011] FCAFC 92 GJ v AS (No 4) [2017] ACTCA 7 Latoudis v Casey (1990) 170 CLR 534 Mareva Building Consultants v Zevon (No 2) [2012] ACTSC 24 McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 O’Neil v Williams (costs) [2007] NSWSC 51
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Priestley v Priestley (No 2) [2016] NSWSC 1259 Reid, Hewitt & Co v Joseph [1918] AC 717 Summers v Repatriation Commission (No 2) [2015] FCAFC 64
Parties:	John Thomas Allen (First Plaintiff)
Allegro Financial Pty Ltd (Second Plaintiff) Allegro Beach Pty Ltd (Third Plaintiff)
Kevin Wilson (First Defendant)
Justin Wilson (Second Defendant)
Burra Unity Pty Ltd (Third Defendant)
Representation:	Counsel
WDB Buckland (Defendants)
Solicitors
HWL Ebsworth (Plaintiffs)
Gabbedy Milson Lee (Defendants)
File Number:	SC 459 of 2018
McWilliam J:

1.       The parties to this proceeding were involved in a disputed joint venture which had failed,
a disputed loan agreement, and a claimed right of contribution under a guarantee. On
27 January 2023, judgment was delivered: Allen v Wilson [2023] ACTSC 10. The Court
found, in favour of the plaintiffs, that there was a joint venture which resulted in an
equitable entitlement to adjustment on its failure, that there was an equitable entitlement
to contribution by co-guarantors under a guarantee and that there was also an
entitlement to be paid moneys under a separate loan agreement, although in an amount
significantly less than what was claimed.
2.       The parties are now disputing the question of costs. The plaintiffs seek an order that the
defendants pay their costs on the ordinary basis. The defendants seek an order that
they pay 40 percent of the plaintiffs’ costs of the proceedings.
3.       For reasons that follow, I have decided the appropriate order is that the defendants pay
75 percent of the plaintiffs’ costs of the proceedings.

Applicable principles

4. The following principles are those that have some significance for the arguments made
by the parties. No party sought indemnity costs or relied on any offer of compromise.
The parties…

Grounds of appeal

[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.

Continue reading Allen v Wilson (No 2)

Details

AGLC: Allen v Wilson (No 2) [2023] ACTSC 102
Case: [2023] ACTSC 102
Decision Date

CaseChat Overview and Summary

The case of Allen v Wilson (No 2) involved a dispute between the plaintiffs, John Thomas Allen, Allegro Financial Pty Ltd, and Allegro Beach Pty Ltd, and the defendants, Kevin Wilson, Justin Wilson, and Burra Unity Pty Ltd. The dispute arose from a failed joint venture, a disputed loan agreement, and a claimed right of contribution under a guarantee. On 27 January 2023, the Court found in favour of the plaintiffs on all three causes of action.

The legal issue in this case was the determination of costs. The plaintiffs sought an order that the defendants pay their costs on the ordinary basis, while the defendants sought an order that they pay 40 percent of the plaintiffs’ costs. The court had to decide the appropriate order for costs, taking into account the mixed success of the plaintiffs and the overall fairness of the outcome.

In arriving at the decision, the court considered various principles of law and authorities on the matter. The court noted that costs are in the discretion of the Court, and the fundamental purpose of the discretion is to compensate the successful party. The court also considered the principle that costs ordinarily follow the event, as well as the possibility of departing from this rule in certain circumstances, such as when a successful party has propounded a substantially exaggerated claim.

The court ultimately decided that an issue-by-issue approach to the exercise of the discretion was not appropriate in this case. Instead, the court took a holistic approach and found that the plaintiffs were successful overall, albeit with mixed results on the individual causes of action. The court considered it fair and just to reduce the defendants' liability for costs by 25 percent due to the dominant issue of the joint venture and the plaintiffs' failure to address the equitable adjustment in their pleadings.

Final orders:
The defendants are to pay 75 percent of the plaintiffs’ costs of the proceedings.

Orders