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Bonic v Pacific General Securities Ltd

Bonic v Pacific General Securities Ltd

Case [2009] NSWSC 1221 16 November 2009

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CITATION: Bonic v Pacific General Securities Ltd [2009] NSWSC 1221

HEARING DATE(S): 07/04/09

JUDGMENT DATE :
16 November 2009

JURISDICTION: Equity

JUDGMENT OF: White J

DECISION: Refer to para 27 of the judgment.

CATCHWORDS: PROCEDURE – costs – departing from the general rule – adjustment to prima facie position that costs follow the event to reflect success of first plaintiff on particular issues - PROCEDURE – costs – whether costs order against first plaintiff should include costs referable to issues concerning only second plaintiff who has become a bankrupt – first and second plaintiffs asserted distinct rights and brought claims in one action for convenience and to reduce costs – first plaintiff not liable for costs not recoverable from second defendant which are referable only to second defendant’s claim

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)

CATEGORY: Consequential orders

CASES CITED: Super 1000 v Pacific General Securities and Bonic v Pacific General Securities [2008] NSWSC 1222; (2008) 221 FLR 427
Reid, Hewitt & Company v Josephs [1918] AC 717
Cretazzo v Lombardi (1975) 13 SASR 4
Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; (1994) 254 ALR 28
Bostik Australia Pty Ltd v Liddiard (No. 2) [2009] NSWCA 304
Ritter v Godfrey [1920] 2 KB 47
Jennings v Zilahi-Kiss (1972) 2 SASR 493
Monier Ltd v Metalwork Tiling Co of Aust Ltd (No. 2) (1987) 43 SASR 588
Total & Universal Pty Ltd v Kingsway Property Investments (No. 2) Pty Ltd [2007] NSWSC 581
Capolingua v Phylum Pty Ltd (1991) 5 WAR 137
Short v Crawley (No. 40) [2008] NSWSC 1302
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 3) (1979) 28 ALR 201
Mike Gaffikin Marine Pty Ltd v Princes Street Marina Pty Ltd (Supreme Court of New South Wales, Young J, 15 July 1996, unreported)

PARTIES: 1st Plaintiff: Jamie Ronald Bonic
2nd Plaintiff: Paul James Heathwood
1st Defendant: Pacific General Securities Ltd
2nd Defendant: Super 1000 Pty Ltd
3rd Defendant; Russell Stuart McLay

FILE NUMBER(S): SC 2215/07

COUNSEL: Plaintiffs: S Climpson
1st Defendant: J Halley SC
2nd & 3rd Defendants: T G R Parker SC

SOLICITORS: Plaintiffs: Gilbert & Tobin
1st Defendant: Alan Brown & Company
2nd & 3rd Defendants: Sachs Gerace

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Monday, 16 November 2009

2215/07 Jamie Ronald Bonic & 1 Or v Pacific General Securities Ltd & 2 Ors

JUDGMENT

1 HIS HONOUR: After delivery of my reasons in Super 1000 v Pacific General Securities and Bonic v Pacific General Securities [2008] NSWSC 1222; (2008) 221 FLR 427 I ordered that the plaintiffs’ claims against the second and third defendants be dismissed. Judgment has been given in favour of the first plaintiff against the first defendant. By consent no order as to costs was made between those parties. I was advised that the second plaintiff, Mr Paul Heathwood has become a bankrupt. No costs order was sought by or against Mr Paul Heathwood or his trustee.

2…

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 Bonic v Pacific General Securities Ltd

Details

AGLC: Bonic v Pacific General Securities Ltd [2009] NSWSC 1221
Case: [2009] NSWSC 1221
Decision Date: 16 November 2009

CaseChat Overview and Summary

The case of Bonic v Pacific General Securities Ltd involved two plaintiffs, Bonic and another individual, who brought claims against the same defendant. The dispute centred on the allocation of costs in the proceedings, particularly whether the costs incurred by the first plaintiff should include those related to issues concerning only the second plaintiff. The second plaintiff had since become bankrupt, complicating the issue of cost allocation.

The court was tasked with determining the appropriate allocation of costs in light of the first plaintiff's partial success and the second plaintiff's bankruptcy. The primary legal issues were whether the first plaintiff should be liable for costs that were not recoverable from the second plaintiff, particularly those costs referable solely to the second plaintiff's claim. Additionally, the court considered whether the costs should reflect the success of the first plaintiff on particular issues despite the general rule that costs follow the event.

In addressing these issues, the court concluded that the first plaintiff was not liable for costs that were not recoverable from the second plaintiff and which were referable only to the second plaintiff's claim. The court reasoned that the plaintiffs had asserted distinct rights and had joined their claims for convenience and to reduce costs. The court departed from the general rule of costs following the event, adjusting the prima facie position to reflect the first plaintiff's success on particular issues. The court held that the first plaintiff should not be held responsible for costs that were not recoverable from the second defendant, given that those costs related exclusively to the second defendant's claim.

As a result of the court's decision, the costs order against the first plaintiff was adjusted to exclude those costs referable to issues concerning only the second plaintiff. The court's ruling recognised the distinct nature of the plaintiffs' claims and the practicalities of joining them for efficiency and cost reduction.

Orders