Benson v Rational Entertainment Enterprises Ltd (No 2) - [2018] NSWCA 148

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Benson v Rational Entertainment Enterprises Ltd (No 2) [2018] NSWCA 148
Hearing dates: On the papers
Decision date: 11 July 2018
Before: Beazley P, Leeming JA, Emmett AJA
Decision:
BY CONSENT, THE COURT ORDERS:
1. Judgment for the Appellant against the Fourth Respondent, Rational FT Enterprises Limited, in the sum of US$382,216.23.
2. The name of the Second Respondent upon all documents filed in these proceedings shall be taken to have been amended to the name “Amaya Group Limited.”
THE COURT ORDERS:
3. Vary order 4 made on 25 May 2018 so that it reads “The fourth respondent to pay the appellant’s costs of the appeal, exclusive of the costs of submissions on the form of the judgment, parties and costs.”
4. No order as to the costs of submissions on the form of the judgment, parties and costs, with the intent that the parties bear their own costs of those submissions.
5. The fourth defendant to pay the plaintiff’s costs at first instance.
Catchwords: COSTS – plaintiff obtained judgment for US$285,000 plus interest against one of four defendants – all defendants located in Isle of Man – proceedings were appropriately commenced in Supreme Court – whether proceedings warranted continuation in Supreme Court after jurisdiction was confirmed – whether settlement offer to all defendants affected discretion as to costs
Legislation Cited: Uniform Civil Procedure Rules 2005, r 42.34
Cases Cited: Benson v Rational Entertainment Enterprises Ltd [2018] NSWCA 111
Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Sahade v Bischoff (No 2) [2016] NSWCA 45
Category: Costs
Parties: Gary Benson (Appellant)
Rational Entertainment Enterprises Ltd (First Respondent)
Rational Group Ltd (Second Respondent)
Oldford Group Ltd (Third Respondent)
Rational FT Enterprises Ltd (Fourth Respondent)
Representation:
Counsel:
M W Young SC (Appellant)
A R Zahra (Respondents)
Solicitors:
H A Miedzinski Lawyers (Appellant)
Addisons Lawyers (Respondents)

File Number(s): 2017/242547
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2017] NSWSC 922

Date of Decision:

13 July 2007

Before:

Hallen J

File Number(s):

2014/336109

Judgment

THE COURT: By a judgment delivered on 25 May 2018, this Court allowed Mr Benson’s appeal in part and made provision for submissions on four ancillary matters arising out of its reasons: Benson v Rational Entertainment Enterprises Ltd [2018] NSWCA 111. The parties have exchanged written submissions on those matters. Two matters are not in issue, and orders 1 and 2 below reflect the agreed position as to the judgment to be entered in favour of Mr Benson and against the fourth respondent, Rational FT Enterprises Ltd, including interest, and the correct name of the second respondent.
The outstanding issues are as to the costs at first instance and on appeal. This Court made no order as to the costs at first instance, in part because it appeared that there may have been an offer of compromise…

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: [2018] NSWCA 148
Decision Date: 11 July 2018

CaseChat Overview and Summary

In *Benson v Rational Entertainment Enterprises Ltd (No 2)*, the Court of Appeal of New South Wales considered an appeal concerning costs following a judgment for the appellant (plaintiff) against the fourth respondent. The appellant had obtained judgment for US$285,000 plus interest against the fourth respondent, with all defendants being located in the Isle of Man. The appeal primarily concerned the discretion exercised by the primary judge regarding costs, particularly in light of the proceedings being commenced in the Supreme Court of New South Wales and a settlement offer made to all defendants.

The central legal issues before the Court of Appeal were whether the proceedings were appropriately commenced in the Supreme Court, whether the proceedings warranted continuation in that jurisdiction after jurisdiction was confirmed, and how a settlement offer made to all defendants affected the discretion of the court in awarding costs. The court was required to determine if the primary judge had erred in their assessment of costs, considering the circumstances of the litigation and the conduct of the parties.

The Court of Appeal, by consent, ordered judgment for the appellant against the fourth respondent in the sum of US$382,216.23. The court also ordered that the name of the second respondent be amended to "Amaya Group Limited" on all relevant documents. Regarding costs, the Court of Appeal varied the previous order to stipulate that the fourth respondent pay the appellant's costs of the appeal, excluding the costs associated with submissions on the form of the judgment, parties, and costs. The parties were to bear their own costs for those specific submissions. Furthermore, the fourth respondent was ordered to pay the plaintiff's costs at first instance.

Orders

Orders of the court

BY CONSENT, THE COURT ORDERS:

1. Judgment for the Appellant against the Fourth Respondent, Rational FT Enterprises Limited, in the sum of US$382,216.23.

2. The name of the Second Respondent upon all documents filed in these proceedings shall be taken to have been amended to the name “Amaya Group Limited.”

THE COURT ORDERS:

3. Vary order 4 made on 25 May 2018 so that it reads “The fourth respondent to pay the appellant’s costs of the appeal, exclusive of the costs of submissions on the form of the judgment, parties and costs.”

4. No order as to the costs of submissions on the form of the judgment, parties and costs, with the intent that the parties bear their own costs of those submissions.

5. The fourth defendant to pay the plaintiff’s costs at first instance.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Benson v Rational Entertainment Enterprises Ltd (No 2) [2018] NSWCA 148
Hearing dates:	On the papers
Decision date:	11 July 2018
Before:	Beazley P, Leeming JA, Emmett AJA
Decision:	BY CONSENT, THE COURT ORDERS: 1. Judgment for the Appellant against the Fourth Respondent, Rational FT Enterprises Limited, in the sum of US$382,216.23. 2. The name of the Second Respondent upon all documents filed in these proceedings shall be taken to have been amended to the name “Amaya Group Limited.” THE COURT ORDERS: 3. Vary order 4 made on 25 May 2018 so that it reads “The fourth respondent to pay the appellant’s costs of the appeal, exclusive of the costs of submissions on the form of the judgment, parties and costs.” 4. No order as to the costs of submissions on the form of the judgment, parties and costs, with the intent that the parties bear their own costs of those submissions. 5. The fourth defendant to pay the plaintiff’s costs at first instance.
Catchwords:	COSTS – plaintiff obtained judgment for US$285,000 plus interest against one of four defendants – all defendants located in Isle of Man – proceedings were appropriately commenced in Supreme Court – whether proceedings warranted continuation in Supreme Court after jurisdiction was confirmed – whether settlement offer to all defendants affected discretion as to costs
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 42.34
Cases Cited:	Benson v Rational Entertainment Enterprises Ltd [2018] NSWCA 111 Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Sahade v Bischoff (No 2) [2016] NSWCA 45
Category:	Costs
Parties:	Gary Benson (Appellant) Rational Entertainment Enterprises Ltd (First Respondent) Rational Group Ltd (Second Respondent) Oldford Group Ltd (Third Respondent) Rational FT Enterprises Ltd (Fourth Respondent)
Representation:	Counsel: M W Young SC (Appellant) A R Zahra (Respondents) Solicitors: H A Miedzinski Lawyers (Appellant) Addisons Lawyers (Respondents)
File Number(s):	2017/242547
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2017] NSWSC 922 Date of Decision: 13 July 2007 Before: Hallen J File Number(s): 2014/336109