Supreme Court
New South Wales
Medium Neutral Citation: Bonanno v Finamore (No 2) [2022] NSWSC 641 Hearing dates: On the papers Date of orders: 23 May 2022 Decision date: 23 May 2022 Jurisdiction: Equity Before: Robb J Decision: Without affecting the validity of any prior costs orders made by the Court in these proceedings, order the plaintiff to pay 60% of the defendants' costs of the proceedings on the ordinary basis.
Catchwords: ESTOPPEL — issue estoppel — decisions to which applicable — Court made orders by consent as to agreed facts in accordance with Evidence Act 1995 (NSW), s 191 — parties agreed on monetary amount of one-third share of net income of property in the case that the Court found the plaintiff to be entitled to one-third share in income — order quantifies amount that remained unpaid — order qualifies amount as calculated up to the date of the hearing or beyond — plaintiff seeks further accounting in respect of net profits — whether plaintiff prevented from such relief by Evidence Act 1995 (NSW), s 191
COSTS — party/party — general rule that costs follow the event — application of the rule and discretion — five costs orders already made in the proceedings — defendants achieve some degree of success on certain issues — whether degree of success achieved by defendants justifies order that plaintiff pay proportion of defendants’ costs — plaintiff ordered to pay 60 per cent of defendants’ costs on ordinary basis
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Evidence Act 1995 (NSW), s 191
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Bonanno v Finamore [2021] NSWSC 1558
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Roache v News Group Newspapers Ltd [1992] TLR 551
Category: Costs Parties: Salvatore Antonio Bonanno (Plaintiff)
Nicola Finamore (First Defendant)
Weisen Zhou (Second Defendant)Representation: Counsel:
Solicitors:
G Foster (Plaintiff)
D A Woods (Defendants)
Phillip A Wilkins & Associates (Plaintiff)
LegalVision (Defendants)
File Number(s): 2015/228434
Judgment
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Judgment in these proceedings was delivered on 1 December 2021: see Bonanno v Finamore [2021] NSWSC 1558 (“J”).
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The parties were required to confer and agree on short minutes of order to give effect to the reasons for judgment.
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On 22 March 2022, the Court was able to make orders that disposed of most of the issues in dispute between the parties. As noted in order 9, the parties were unable to agree upon the orders that should be made in relation to two outstanding issues, namely:
whether or not the amount of $75,000 in the Agreed Facts is inclusive of the net rent payable to the plaintiff for the period from 31 March 2021; and
the order that should be made in respect of the costs of the proceedings.
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On 11 April 2022, the Court made orders for the delivery of…
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- Case
- [2022] NSWSC 641
- Decision Date
CaseChat Overview and Summary
The court held that the plaintiff was not precluded from seeking further accounting for net profits from the property by the terms of section 191 of the Evidence Act 1995 (NSW). This section allows the court to make orders by consent regarding agreed facts, but it did not extend to preventing the plaintiff from seeking further accounting for profits. The court further reasoned that the amount owed to the plaintiff was not quantified by the previous orders and thus a further accounting was necessary. Regarding costs, the court noted that while the general rule is that costs follow the event, there is also a discretion to order otherwise. Given that the plaintiff had already achieved some success in the proceedings, the court found that the defendants' degree of success on certain issues justified an order that the plaintiff pay 60 per cent of the defendants' costs on the ordinary basis.
In summary, the court ruled that Mr Bonanno was not precluded from seeking further accounting for net profits by the terms of the Evidence Act 1995 (NSW), s 191. The court also ordered that Mr Bonanno pay 60 per cent of the defendants' costs on the ordinary basis, reflecting the defendants' degree of success in the proceedings.
Orders
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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