Australian Financial Services and Leasing Pty Ltd v Hills Industries Limited
[2011] NSWSC 595
•20 June 2011
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Australian Financial Services and Leasing Pty Ltd v Hills Industries Limited & Ors [2011] NSWSC 595 Hearing dates: 28/3/2011 - 31/3/2011, 1/4/2011, 17/6/11 Decision date: 20 June 2011 Jurisdiction: Equity Division - Commercial List Before: Einstein J Decision: ( 1) With respect to the first defendant:
(a) Judgment for the plaintiff against the first defendant in the sum of $247,306.23, being compensation in the amount of $224,685.40 together with interest in the amount of $22,620.83.
(b) The first defendant to pay the plaintifff's costs as agreed or assessed.
(2) With respect to the second defendant:
(a) Verdict for the second defendant against the plaintiff.
(b) The plaintiff to pay the second defendant's costs on the ordinary basis up to 21 February 2011 and thereafter the plaintiff to pay the second defendant's costs on an indemnity basis, such costs to be as agreed or assessed.
(3) With respect to the third defendant:
(a) Judgment for the plaintiff against the third defendant in the amount of $170,270.37, being compensation in the amount of $154,935.00 together with interest in the amount of $15,335.37.
(b) The third defendant to pay the plaintiff's costs as agreed or assessed.
Catchwords: Costs Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Consequential orders Parties: Australian Financial Services and Leasing Pty Ltd (Plaintiff)
Hills Industry Limited (First Defendant)
Bosch Security Systems Pty Limited (Second Defendant)
Jetobravo Pty Limited (Third Defendant)Representation: Counsel:
Mr A Moses SC, Mr M Cleary (Plaintiff)
Mr T Thawley (First Defendant)
Mr L Gor (Second Defendant)
Mr R Marshall (Third Defendant)
Solicitors:
Berry Buddle Wilkins Lawyers (Plaintiff)
Cosoff Cudmore Knox (First Defendant)
HWL Ebsworth (Second Defendant)
Lee Hourigan & Brooks (Third Defendant)
File Number(s): 2010/0133256
Judgment
Following judgment given on 5 April 2011, the parties were afforded an opportunity to address on costs.
Costs against the first defendant
The principled approach to the plaintiff's application for costs against the first defendant is:
(1) To make order 1 as set out in the first defendant's proposed judgment order; and
(2) Make order 2 in the plaintiff's proposed judgment order as against the first defendant.
The plaintiff is entitled to costs in the cause, but interest should only run from the date the plaintiff made a demand for repayment, not from the date the mistaken payment was made.
Costs against the third defendant
The principled approach to the plaintiff's application for costs against the third defendant is:
To make orders 1 and 2 as set out in the plaintiff's proposed judgment order as against the third defendant, except order 1 should be varied so that interest calculated with respect to the judgment amount in order 1 should only be calculated from the date the plaintiff made a demand for repayment, not from the date the mistaken payment was made.
This is for reasons identical to that of the first defendant.
Costs against the plaintiff with respect to the second defendant
The principled approach to the second defendant's entitlement to costs from the plaintiff is:
To make orders 1 and 2 of the plaintiff's proposed judgment order with respect to the second defendant.
The second defendant has not satisfied the Court that the plaintiff's case was manifestly hopeless so as to warrant an indemnity costs order for the period preceding the second defendant's offer of compromise. There remained a serious question to be tried.
Common grounds advanced by the first and third defendants
The first and third defendants advanced two common arguments, which they submitted should reduce any costs payable by them to the plaintiff. These were:
(1) The Supreme Court was an inappropriate forum for this hearing and as such under Rule 42.34 of the Uniform Civil Procedure Rules 2005, the Court should not make a costs order against the defendants; and
(2) The joining of three defendants into one hearing unnecessarily increased each defendant's expenses.
On both of these matters, it is my view that the course taken by the plaintiff was appropriate. The Supreme Court was the appropriate forum given the equitable nature of some of the plaintiff's causes of action and the limits imposed on these causes of action by the District Court.
In relation to the joining of the three parties, given the substantial factual overlap, this approach was in the overall interests of a just, quick and cheap resolution of the real issues in dispute. Accordingly, no adverse cost consequences should flow from it.
Orders
The Court makes the following orders:
(1) With respect to the first defendant:
(a) Judgment for the plaintiff against the first defendant in the sum of $247,306.23, being compensation in the amount of $224,685.40 together with interest in the amount of $22,620.83.
(b) The first defendant to pay the plaintifff's costs as agreed or assessed.
(2) With respect to the second
defendant:
(a) Verdict for the second defendant against the plaintiff.
(b) The plaintiff to pay the second defendant's costs on the ordinary basis up to 21 February 2011 and thereafter the plaintiff to pay the second defendant's costs on an indemnity basis, such costs to be as agreed or assessed.
(3) With respect to the third defendant:
(a) Judgment for the plaintiff against the third defendant in the amount of $170,270.37, being compensation in the amount of $154,935.00 together with interest in the amount of $15,335.37.
(b) The third defendant to pay the plaintiff's costs as agreed or assessed.
Corrigendum:
By consent the Court vacates the orders made on 20 June 2011 and in their place are orders (1) (2) and (3).
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Amendments
23 June 2011 - By consent the Court vacates the orders made on 20 June 2011 and in their place are orders (1) (2) and (3).
Amended paragraphs: Coversheet and paragraph 11
Decision last updated: 20 June 2011
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