Booth v Cerreto (No 2) - [2024] NSWSC 207

Supreme Court

New South Wales

Medium Neutral Citation: Booth v Cerreto (No 2) [2024] NSWSC 207
Hearing dates: 28 February 2024
Date of orders: 28 February 2024
Decision date: 28 February 2024
Jurisdiction: Equity
Before: Kunc J
Decision:
No order as to costs

Catchwords:
COSTS — Party/Party — Exceptions to general rule that costs follow the event — Long running litigation where each party succeeded on some issues — No issue of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 56-60
Uniform Civil Procedure Rules 2005 (NSW) Pt 42, r 42.20

Cases Cited:
Booth v Cerreto [2023] NSWSC 1574

Category: Costs
Parties: Millie Booth (First Plaintiff)
William Grant Booth (Second Plaintiff)
Mary Butterworth as Co-Executor in the Last Will of Maria Immaculata Dominello (Third Plaintiff)
Norm Cerreto (First Defendant)
Antonio Salerno (Second Defendant)
Arthur Street Facility Management Pty Ltd (Third Defendant)
Arthur Street Build Group Pty Ltd (Fourth Defendant)
Australia and New Zealand Banking Group Ltd (Fifth Defendant)
Westpac Banking Corporation (Sixth Defendant)
Representation:
Counsel: NJ Kidd SC / JA Darvall (Plaintiffs)
A Cheshire SC / C Carroll (First to Fourth Defendants)
Solicitors: Mercuri Lawyers (Plaintiffs)
AJL Legal (First to Fourth Defendants)

File Number(s): 2016/00109465

EX TEMPORE JUDGMENT (REVISED)

Summary

On 15 December 2023, the Court delivered its principal judgment in these proceedings: Booth v Cerreto [2023] NSWSC 1574 (J). The parties were largely in agreement about the orders required to give effect to the principal judgment, save as to one aspect of the working out of the accounting between them and as to costs.
This judgment resolves both remaining disputes. In relation to costs, where each party has, in overview, enjoyed a measure of success, the Court will make no order as to costs to the intention that each should pay their own costs.
This judgment should be read and assumes familiarity with the principal judgment. Defined terms in the principal judgment have the same meaning in these reasons.
The parties provided written outlines of submissions which were supplemented by argument today. Mr NJ Kidd of Senior Counsel appeared with Mr JA Darvall of Counsel for the plaintiffs. Mr A Cheshire of Senior Counsel appeared with Mr C Carroll of Counsel for the defendants.

The accounting order

Turning first to the question of the orders to be made in respect of the accounting, the debate turned on what was to happen in relation to any surplus after payment out of the parties’ respective contributions. It may be illustrated by the two versions of the relevant orders which were propounded in the course of argument by the parties.
Mr Kidd SC proposed orders 4(e), (f) and (g);

“(e) fifth, to the Plaintiffs the amount of $956,863 (representing their contributions to the joint venture);

(f) sixthly, to the plaintiffs the amount equal to 50% of the following amount:

(i)    The gross sale price less:
a.   the amount pursuant to (c) and (d);
b.    the amount of $2,239,588 (representing the total of the contributions of the Plaintiffs and the…

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 Booth v Cerreto (No 2)

Details

AGLC: Booth v Cerreto (No 2) [2024] NSWSC 207
Case: [2024] NSWSC 207
Decision Date: 28 February 2024

CaseChat Overview and Summary

The case involved Booth and Cerreto, with the dispute concerning legal costs incurred during a protracted litigation. The proceedings took place in the Federal Court of Australia. The matter had a complex history, with both parties achieving partial success at different stages. The central issue was determining the allocation of costs between the parties, given the extended duration of the litigation and the mixed outcomes.

The court had to decide whether to follow the general principle that costs follow the event, meaning the losing party typically pays the winner's costs. However, this principle might not apply in cases with prolonged litigation and where both parties have succeeded on some issues. The court considered whether the exceptional circumstances warranted a different approach to cost allocation.

The Federal Court held that while the usual rule was that costs follow the event, the exceptional nature of this case justified a departure from this rule. The court found that the litigation had been excessively lengthy, and both parties had achieved partial success. Consequently, the court ordered that each party bear their own costs for the proceedings, reflecting the unique circumstances of the case.

No further orders were made by the court, as the primary focus was on the allocation of costs. This decision highlights the flexibility of the court in handling cost orders in protracted and complex litigation, ensuring a just outcome for both parties involved.

Orders