Canwin (Aust) Pty Ltd v Angorita Pty Ltd

[2011] NSWSC 521

Supreme Court

New South Wales

Medium Neutral Citation:	Canwin (Aust) Pty Ltd -v- Angorita Pty Ltd [2011] NSWSC 521
Hearing dates:	25 May 2011
Decision date:	25 May 2011
Jurisdiction:	Equity Division - Commercial List
Before:	Hammerschlag J
Decision:	Plaintiffs have leave to discontinue the proceedings Plaintiffs to pay the costs of the eleventh defendant
Catchwords:	COSTS - parties agree on summary procedure for disposition of costs questions
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Canwin (Aust) Pty Ltd (ACN 064 392 310) - First Plaintiff Clelia Concetta Winton - Second Plaintiff Dontre Pty Ltd ACN 064 389 251 - Third Plaintiff Angorita Pty Ltd ACN 001 565 300 - First Defendant Leslie Schirato - Second Defendant Luisa Maria Schirato - Third Defendant Gabriella Schirato - Fourth Defendant Rolando Schirato - Fifth Defendant Steve McDonald - Sixth Defendant William McDonald (a minor) - Seventh Defendant Schirato Pty ltd ACN 060 136 432 - Eight Defendant Instore Demo's Pty Ltd ACN 002 414 244 - Ninth Defendant Siapa Pty Ltd ACN 000 525 824 - Tenth Defendant Leslie Faulks Winton - Eleventh Defendant Annella Chiara Winto - Twelfth Defendant Michaela Serena Winton - Thirteenth Defendant
Representation:	Counsel: M. Shand QC with J.E. Richards - Plaintiffs S.G. Finch SC with M.R. Elliott - First and Tenth Defendants B.W. Walker SC with J. Stoljar SC - Second, Third, Eighth and Ninth Defendants M.J. Darke - Fourth, Fifth, Sixth and Seventh Defendants S.T. Chrysanthou - Eleventh Defendant R.R.I. Harper SC - Twelfth and Thirteenth Defendants Solicitors: Andrew Priestley & Associates - Plaintiffs Horton Rhodes - First and Tenth Defendants Atanaskovic Hartnell - Second, Third, Eighth and Ninth Defendants Atanaskovic Hartnell - Fourth, Fifth, Sixth and Seventh Defendants Dibbs Barker - Eleventh Defendant Shand & Associates - Twelfth and Thirteenth Defendants
File Number(s):	2009/324710

Judgment

1. HIS HONOUR: Criticism is, from time to time, levelled at the legal profession for not doing enough to rein in the costs of litigation. I should not let this occasion pass without remarking that the length and cost of the present hearing has been significantly reduced by the cooperation of counsel and solicitors for the various parties in this, undoubtedly, bitterly fought litigation over significant amounts of money. Why this is so will be readily apparent from what follows.

1. These proceedings were commenced on 22 December 2009, when the plaintiffs sued out a Summons and Commercial List Statement relating to the affairs of two trusts of which the first defendant, Angorita, is trustee, known as the Gigiola Cantorella Trust and the Roazio Cantorella Family Trust. There are 13 defendants,

1. I have had the case management of the proceedings since their commencement.

1. On 8 October 2010, the directors of the plaintiff, the second and the third defendants passed resolutions to transfer 49 per cent of the shares held by the trust in the tenth defendant (Siapa) to the second plaintiff and 51 per cent to the second and third defendants.

1. One of the practical consequences of this is that the plaintiffs no longer wish to prosecute the proceedings.

1. By Notice of Motion issued on 2 December 2010 they seek leave to discontinue. That leave should be granted, is uncontroversial and will accordingly be given.

1. There is, however, a significant and somewhat wide-ranging controversy as to the costs orders that should be made.

1. It is fair to describe the substance of the plaintiffs' position, as reflected in the orders sought in their motion as being that, notwithstanding the discontinuance, their costs should be borne by the second and third defendants and the eighth and ninth defendants which are companies associated with them.

1. It is also fair to describe the position of the defendants (except for the twelfth and thirteenth defendants, who are the second plaintiff's children) as being that the plaintiffs should pay their costs.

1. The Motion was set down on the basis that the parties estimated that two days hearing would be required.

1. Comprehensive written submissions were received in a three volume Court Book of affidavits intended to be read, and documents intended to be tendered was delivered to my chambers. No less than ten counsel were at the bar table.

1. The matter is one of discretion to be exercised in accordance with Uniform Civil Procedure Rules 2005 (NSW) Pt 42, r 42.19(1) and (2), which provide as follows:

(1) This rule applies to proceedings that are discontinued by the plaintiff, as referred to in rule 12.1.

(2) Unless the court orders otherwise or the notice referred to in rule 12.1(2) otherwise provides, the plaintiff must pay each of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued."

1. When the matter was called I suggested that I make orders as to costs without any affidavits being read, evidence being tendered and with each party being given five minutes in submission on the footing that reasons would not be given. The parties, through counsel, agreed. The plaintiffs were given five minutes in reply.

1. I make the following orders:

(1)   The plaintiffs have leave to discontinue the proceedings.

(2)   The plaintiffs are to pay the costs of the eleventh defendant.

(3)   I make no further orders as to costs [to the intent that the parties shall otherwise bear their own].

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Decision last updated: 02 June 2011