Bonanno v Finamore (No 2) - [2022] NSWSC 641

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
Breakout Barrier Release Systems Pty Ltd v Breakout Barrier Release Systems Australasia Ltd (Costs) [2013] NSWSC 1955
Roache v News Group Newspapers Ltd [1992] TLR 551
Sayour v Elliott (No 2) [2018] NSWSC 146

Category: Costs
Parties: Salvatore Antonio Bonanno (Plaintiff)
Nicola Finamore (First Defendant)
Weisen Zhou (Second Defendant)
Representation:
Counsel:
G Foster (Plaintiff)
D A Woods (Defendants)
Solicitors:
Phillip A Wilkins & Associates (Plaintiff)
LegalVision (Defendants)

File Number(s): 2015/228434

Judgment

Judgment in these proceedings was delivered on 1 December 2021: see Bonanno v Finamore [2021] NSWSC 1558 (“J”).
The parties were required to confer and agree on short minutes of order to give effect to the reasons for judgment.
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.

On 11 April 2022, the Court made orders for the delivery of…

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: [2022] NSWSC 641
Decision Date: 23 May 2022

CaseChat Overview and Summary

The case of Bonanno v Finamore (No 2) involved the plaintiff, Mr Bonanno, seeking further accounting for net profits from a property he claimed to be entitled to a one-third share of. The defendants, Mr Finamore and others, had previously agreed to pay Mr Bonanno a one-third share of the net income in the event the court found him to be entitled to such a share. The case was heard in the Supreme Court of New South Wales. The primary legal issues the court needed to address were whether the plaintiff was precluded from seeking further accounting by the terms of section 191 of the Evidence Act 1995 (NSW) and whether the plaintiff should be ordered to pay a proportion of the defendants' costs, despite having already achieved some measure of success in the proceedings.

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