Anzaway v Maroun Corporation (No.2) - [2003] NSWSC 725

CITATION: Anzaway v Maroun Corporation (No.2) [2003] NSWSC 725

HEARING DATE(S): 7 August 2003

JUDGMENT DATE:
7 August 2003

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: See under heading "Conclusions"

CATCHWORDS: COSTS - contraventions found against second and fourth defendants - plaintiffs failed to establish that defendants' caused them loss - whether plaintiffs should be ordered to pay second and fourth defendants' costs - whether second and fourth defendants, though successful, should be ordered to pay plaintiffs' costs - apportionment of costs between defendants - whether plaintiffs should be ordered to pay cross-claimants' costs

LEGISLATION CITED: Trade Practices Act 1974 (Cth) ss 52, 82

CASES CITED: Aristotite v Gladstone Park Shopping Centre Pty Ltd (1984) 55 ALR 387
Colgate Palmolive v Cussons Pty Ltd (1993) 118 ALR 248
Donald Campbell & Co Ltd v Pollak [1927] AC 737
Edginton v Clark [1964] 1 QB 367
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants (1988) 81 ALR 397
Igaki Australia Ltd v Coastline Pty Ltd (Federal Court of Australia, Drummond J, 2 November 1994, unreported).
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237
Jones v Merioneth Shire Permanent Benefit Building Society [1892] 1 Ch 188
Re Bond Corporation Holdings Ltd (1990) 1 ACSR 350
Ritter v Godfrey [1920] 2 KB 47
Rosnik v Government Insurance Office (1997) 41 NSWLR 608
Russo v Resource Development International Pty Ltd (No 2) [2003] NSWSC 446
Scherer v Counting Instruments Ltd [1986] 1 WLR 615
Zelino Pty Ltd v Budai [2001] NSWSC 501

PARTIES :
Anzaway Pty Ltd (P1)
Neville James Green (P2)
Frederick Geoffrey Marles (P3)
Warren Gilbert Scott (P4)
Maroun Corporation Pty Ltd (D1)
Fribeau Pty Ltd (D2)
Joseph Maroun (also known as Joseph Boutros) (D3)
Estphan (Estephan) Maroun (also known as Steve Boutros) (D4)
Michael Doueihi (D5)
Joe Nasr (D6)

FILE NUMBER(S): SC 3403/00

COUNSEL: N Cotman SC with G Thomas (P)
D Officer QC (D1-D4)
S D Robb QC (D5)
M Mudge (Solicitor) (D6)

SOLICITORS: K O'Malley, Jones & Williamson (P)
Tress Cocks & Maddox (D1-D4)
Acuiti Legal (D5)
Corrs Chambers Westgarth (D6)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

THURSDAY 7 AUGUST 2003

3403/00 ANZAWAY PTY LTD & ORS V MAROUN CORPORATION PTY LTD & ORS (NO. 2)

JUDGMENT (Revised)

1 HIS HONOUR: In my reasons for judgment published on 3 July 2003, I reached the following conclusions:

· the second defendant contravened s 51(1) of the Trade Practices Act, and the fourth defendant was involved in that contravention for the purposes of s 75B;

· subject to submissions, there was no utility in making any declaratory orders with respect to that contravention;

· the plaintiffs failed to establish any causal link between the contravening conduct of the second defendant and any loss by the plaintiffs, and therefore they were not entitled to recover damages from the second or fourth defendant;

· no contravention or grounds for relief had been…

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.

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Details

Case: [2003] NSWSC 725
Decision Date: 7 August 2003

CaseChat Overview and Summary

The case of Anzaway v Maroun Corporation (No.2) involved a complex dispute between multiple parties, including Anzaway and Maroun Corporation, with additional defendants and cross-claimants. The primary issue was whether the plaintiffs were entitled to any relief given the findings of contraventions against the second and fourth defendants. Furthermore, the court had to determine the appropriate allocation of costs between the parties, considering the outcomes and the nature of the litigation.

The legal issues addressed by the court included whether the plaintiffs should be ordered to pay the costs of the second and fourth defendants, despite the latter's contraventions. Additionally, the court had to decide whether the second and fourth defendants, despite being successful in their defences, should be ordered to pay the plaintiffs' costs. Another key issue was the apportionment of costs between the defendants and the determination of whether the plaintiffs should bear the costs of the cross-claimants.

The court found that while contraventions were established against the second and fourth defendants, the plaintiffs did not successfully prove that these contraventions caused them any loss. Consequently, the plaintiffs were not entitled to any relief. The court held that the plaintiffs should be ordered to pay the costs of the second and fourth defendants, given their successful defences. The court further ruled that the second and fourth defendants, though successful, should not be ordered to pay the plaintiffs' costs. The court also addressed the apportionment of costs among the defendants, ensuring a fair distribution based on the outcomes and conduct of the litigation.

The final orders of the court directed that the plaintiffs bear the costs of the second and fourth defendants, while the second and fourth defendants were not required to pay the plaintiffs' costs. The court also provided specific directions on the apportionment of costs among the defendants.

Orders