Bookarelli Pty Ltd v Katanga Developments Pty Ltd

Case [2017] NSWCA 69

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69
Hearing dates: 23 March 2017
Decision date: 05 April 2017
Before: Macfarlan JA at [1],
Payne JA at [2],
Sackville AJA at [3]
Decision:

1.   The Amended Summons filed on 8 December 2016 be dismissed.
2.    The applicant pay the respondent’s costs of the proceedings in this Court.
3.    Subject to any application as to costs that may be made by the respondent, the applicant file and serve written submissions within 14 days as to whether it should be ordered to pay the costs of the proceedings in this Court on an indemnity basis.

Catchwords:

JUDICIAL REVIEW – application for judicial review of a decision of the District Court on appeal from a Costs Review Panel – whether District Court committed jurisdictional error by failing to apply the so-called “rule of thumb” in a case where the plaintiff succeeded against one defendant but failed against another

  COSTS – assessment of costs – status of “rule of thumb”
Legislation Cited:

District Court Act 1973 (NSW), ss 127(2)(b), (c), 176, Pt 4
Legal Profession Act 2004 (NSW), ss 367A, 373, 374, 375, 384
Legal Profession Uniform Law (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW), ss 4, 167(a)
Supreme Court Act 1970 (NSW), s 69

 

Legal Profession Uniform Law Application Act 2014 (Vic), Sch 1

Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 59
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.7, 51.45(1A); Pt 59
Cases Cited: Bookarelli Pty Ltd v Katanga Developments Pty Ltd (District Court (NSW), 27 July 2016, unrep)
Chen v Chan (No 2) [2009] VSCA 233
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232
James v Royal Bank of Scotland (No 2) [2015] NSWSC 970
Katanga Developments Pty Limited v Bookarelli Pty Limited [2013] NSWDC 237
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265
Re Colquhoun (1854) 5 De GM&G 35; 43 ER 781
Rogers v Wentworth (Court of Appeal (NSW), 18 April 1988, unrep)
Wardle v Agricultural and Rural Finance Pty Ltd (No 2) [2012] NSWCA 388
YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12
Texts Cited: GE Dal Pont, Law of Costs, (3rd ed 2013, LexisNexis Butterworths) at [14.24]
Category:Principal judgment
Parties:

Bookarelli Pty Ltd (Applicant)

  Katanga Developments Pty Ltd (First Respondent)
His Honour Judge Hatzistergos (Second Respondent)
Representation:

Counsel:
Mr O Jones (Applicant)
Ms M Castle / Mr AD Bailey (Respondents)

  Solicitors:
Thomas Booler & Co Lawyers (Applicant)
Cordato Partners (Respondents)
File Number(s): 2016/321143
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Date of Decision:
29 July 2016
Before:
Hatzistergos DCJ
File Number(s):
2015/274083

Judgment

  1. MACFARLAN JA: I agree…

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AGLC
Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69
Case
[2017] NSWCA 69
Decision Date

CaseChat Overview and Summary

Bookarelli Pty Ltd (the applicant) sought judicial review of a decision of the District Court of New South Wales. The dispute concerned the assessment of costs following litigation where the applicant had succeeded against one defendant but failed against another. The District Court had heard an appeal from a Costs Review Panel concerning the quantum of costs awarded.

The primary legal issue before the Court of Appeal was whether the District Court had committed a jurisdictional error by failing to apply the so-called "rule of thumb" in its assessment of costs. This rule of thumb, in the context of a plaintiff succeeding against one defendant but failing against another, generally suggests that the plaintiff should recover a proportion of their costs from the unsuccessful defendant and bear their own costs in relation to the successful defendant.

The Court of Appeal held that the District Court had not erred in its approach. Their Honours reasoned that the "rule of thumb" is not a rigid legal principle that must be applied in all circumstances. Instead, it is a guideline or a starting point for consideration by the court or costs assessor. The District Court had properly considered the relevant principles of costs assessment, including the need to apportion costs where a plaintiff has had mixed success. The court found that the District Court's decision was within its jurisdiction and that no jurisdictional error had occurred.

Consequently, the Amended Summons filed by the applicant was dismissed. The applicant was ordered to pay the respondent's costs of the proceedings in the Court of Appeal, with a further direction for the applicant to make submissions on whether those costs should be assessed on an indemnity basis.

Orders

Orders of the court

1. The Amended Summons filed on 8 December 2016 be dismissed.

2. The applicant pay the respondent’s costs of the proceedings in this Court.

3. Subject to any application as to costs that may be made by the respondent, the applicant file and serve written submissions within 14 days as to whether it should be ordered to pay the costs of the proceedings in this Court on an indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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