Bonanno v Finamore (No 2)

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.