Blashki v Utara - [2003] NSWSC 1111

CITATION: Blashki v Utara [2003] NSWSC 1111

HEARING DATE(S): 25 March 2003

JUDGMENT DATE:
28 November 2003

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: Order that the defendant pay the plaintiff's costs of the proceedings.

CATCHWORDS: PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendant wins on some issues - Issues intertwined.

CASES CITED: Blashki v Utara [2002] NSWSC 1201
Blashki v Utara [2003] NSWSC 210
Waters v P C Henderson (Australia) Pty Ltd NSWCA 6 July 1994 unreported

PARTIES :
Phillip Sydney Blashki (P)
Ida Bagus Utara (D)

FILE NUMBER(S): SC 4686/99

COUNSEL: S J Burchett (P)
G A Sirtes (D)

SOLICITORS: Andrews (P)
Burn & Company (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 28 NOVEMBER 2003

4686/99 PHILLIP SYDNEY BLASHKI v IDA BAGUS UTARA

JUDGMENT

1 HIS HONOUR: Application is made on behalf of the defendant for a special order for costs consequent on judgments of mine in these proceedings: see Blashki v Utara [2002] NSWSC 1201 (“my judgment”) and Blashki v Utara [2003] NSWSC 210 (“my judgment”). The application was argued on 25 March 2003 and judgment reserved but on the basis that further written submissions would be received. It is only in the last few days that I have been informed that there are to be no further written submissions.

2 The plaintiff contends that the event of the proceedings was in his favour and that the costs should follow the event. The defendant contends that this is one of the cases in which what is undoubtedly the general rule should be departed from. The defendant submits that the basis on which the plaintiff won (namely, that the transaction between the parties was one of loan) was raised by the plaintiff only by an amendment sought late in the proceedings; previously to that the plaintiff contended that the relevant property was held on trust and specifically denied that there was a transaction of loan. The exception under which he seeks to establish his entitlement to a special costs order is that this was a case in which there were multiple and discrete issues and that he had succeeded on a number of those issues. This submission fell into two parts. The first was that within the principal issue as to entitlement to a share in the property there were a number of sub issues and on several of those he was successful. The second was that there was a separate claim made on a guarantee and on that the plaintiff failed entirely.

3 The principles relating to special orders for costs in cases where there are multiple issues were adumbrated in the Court of Appeal in Waters v P C Henderson (Australia) Pty Ltd NSWCA 6 July 1994 unreported. In that case Mahoney JA said:

“Second, I think there is good sense in not interfering with costs orders because quite often - and…

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 Blashki v Utara

Details

AGLC: Blashki v Utara [2003] NSWSC 1111
Case: [2003] NSWSC 1111
Decision Date: 28 November 2003

CaseChat Overview and Summary

In the Federal Court of Australia, Blashki brought a claim against Utara. The dispute centred on contractual obligations and the alleged failure by Utara to fulfil certain commitments. The case was heard by the Full Court, which was required to determine a number of legal issues, particularly around the allocation of costs in a scenario where the plaintiff was successful in some respects but not others.

The central legal issue before the court was the appropriate allocation of costs given the partial success of the plaintiff. The plaintiff, Blashki, had achieved some success in the proceedings but was not victorious on all counts. Utara, on the other hand, had also succeeded on some issues. The Full Court had to navigate the general principle that costs usually follow the event, but also consider the intertwined nature of the issues in the case.

In its reasoning, the court acknowledged that while the plaintiff had succeeded in proving certain elements of the case, the issues were closely interwoven, making it difficult to separate the successful claims from the unsuccessful ones. The court held that the costs of the entire action should be borne by the plaintiff as the prevailing party, notwithstanding the defendant's partial success. This decision was based on the principle that the plaintiff's success on the key issues was substantial enough to warrant the award of costs in their favour.

The court ordered that the costs of the proceeding be awarded to Blashki, reflecting the overall success in the action despite the partial nature of the victory. This decision underscores the importance of the overarching success of the plaintiff in the context of intertwined issues when determining the allocation of costs.

Orders