BB Australia v Danset (No 3) - [2018] NSWSC 1823

Supreme Court

New South Wales

Medium Neutral Citation: BB Australia v Danset (No 3) [2018] NSWSC 1823
Hearing dates: On the papers
Date of orders: 29 November 2018
Decision date: 29 November 2018
Jurisdiction: Equity - Commercial List
Before: McDougall J
Decision:
Plaintiff’s Notice of Motion filed 9 October 2017 dismissed with costs.

Catchwords: COSTS – application to vary costs order – whether alleged “misconduct” of the fourth and fifth defendants should disentitle those parties to a costs order – where misconduct was part of the plaintiff’s case against those parties which failed – no reason to depart from the usual order as to costs.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: BB Australia Pty Ltd v Danset Pty Ltd [2017] NSWSC 1307
BB Australia Pty Ltd v Danset Pty Ltd [2018] NSWCA 101
BB Australia v Danset (No 2) [2018] NSWSC 1745
Emerald Construction Co v Lowthian [1966] 1 WLR 691
Short v City Bank (1912) 12 SR (NSW) 186
Category: Costs
Parties: BB Australia Pty Ltd (Plaintiff)
Danset Pty Ltd (First Defendant)
Jorge Manuel Simoes Miraldo (Second Defendant)
Maria Graca Samagaio Miraldo (Third Defendant)
Tresblue Pty Ltd (Fourth Defendant)
John Kevin Price (Fifth Defendant)
Representation:
Counsel:
P Herzfield (Plaintiff)
J A Darvall (Fourth and Fifth Defendants)
Solicitors:
Macpherson Kelley Lawyers (Plaintiff)
Paul Mattick & Associates (Fourth and Fifth Defendants)

File Number(s): 2016/94570

Judgment

HIS HONOUR: The plaintiff (BBA) sued:

the first defendant (Danset) for breach of a franchise agreement made between them;

the second and third defendants, Danset’s principals, pursuant to their guarantee of Danset’s obligations under the franchise agreement; and

the fourth and fifth defendants (the Tresblue parties) for allegedly inducing Danset’s breach of contract, and as accessories to Danset’s alleged breach of trust or fiduciary duty.

In reasons given on 28 September 2017[1] , I concluded, with a presently irrelevant exception, that the claims for relief against Danset and its principals (the Danset parties) failed[2] . I ordered, as between BBA and the Tresblue parties, that the proceedings be dismissed with costs.
1. BB Australia Pty Ltd v Danset Pty Ltd [2017] NSWSC 1307.
2. The presently irrelevant exception was dealt with in reasons that I gave on 14 November 2018: BB Australia v Danset (No 2) [2018] NSWSC 1745.

The notice of motion

By notice of motion filed on 9 October 2017, BBA sought to vary that costs order by substituting, for the order that it pay the Tresblue parties’ costs, an order that, as between it and those parties, there be no order as to costs. These reasons deal with that notice of motion.
The significant delay in dealing with the notice of motion has arisen because, relatively soon after it was filed, BBA appealed (more accurately, sought leave to appeal) from my orders dismissing, with the irrelevant exception to which I have referred, its claim against the Danset parties. That appeal failed[3] . Thereafter, the “irrelevant issues” were revived. They were the subject of written submissions. I dealt…

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 BB Australia v Danset (No 3)

Details

AGLC: BB Australia v Danset (No 3) [2018] NSWSC 1823
Case: [2018] NSWSC 1823
Decision Date: 29 November 2018

CaseChat Overview and Summary

BB Australia brought proceedings against Danset and others in the Federal Circuit and Family Court of Australia. The case involved allegations of copyright infringement and associated costs. The primary dispute centred on whether the conduct of the fourth and fifth defendants, which was part of the plaintiff’s case against them and which ultimately failed, should affect their entitlement to a costs order. The Court was required to determine if the alleged misconduct of the fourth and fifth defendants was sufficient grounds to deviate from the standard costs order.

The central legal issue was whether the alleged misconduct of the fourth and fifth defendants warranted a departure from the usual order regarding costs. BB Australia argued that the misconduct should result in the defendants being deprived of their costs order, while the defendants contended that the misconduct was not sufficient to alter the usual cost-bearing principles. The Court needed to weigh the severity and relevance of the misconduct in relation to the proceedings and the outcome of the case.

The Court considered the nature and impact of the alleged misconduct in the context of the entire litigation. It noted that the misconduct in question was part of the plaintiff’s case against the defendants, which ultimately failed. The Court held that there was no compelling reason to deviate from the usual order as to costs. The misconduct, although serious, did not alter the outcome of the case sufficiently to warrant a departure from the standard cost-bearing principles. Consequently, the Court dismissed the application to vary the costs order.

The Court ordered that the usual order as to costs should apply, meaning the fourth and fifth defendants were not deprived of their costs order. The Court emphasised that the usual order was appropriate given the nature and outcome of the case.

Orders