Capogreco v Rogerson

[2016] NSWCA 61

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Capogreco v Rogerson [2016] NSWCA 61
Hearing dates:	23 March 2016
Decision date:	23 March 2016
Before:	Basten JA at [1]; Simpson JA at [18]
Decision:	(1)   Dismiss the application for leave to appeal.  (2)   The applicants to pay the first respondent’s costs.
Catchwords:	APPEAL – application for leave to appeal – costs – challenge to apportionment of costs – partial success at trial – whether costs should be apportioned as to causes of action where issues intertwined – whether apportionment to be based on pre-trial costs of preparation of evidence – whether costs assessor could allocate costs after the event   COSTS – Calderbank letter – whether offer of fixed costs a genuine offer of compromise
Category:	Principal judgment
Parties:	Antonio Capogreco (First Applicant) Rosa Capogreco (Second Applicant) Anna Pirrello (Third Applicant) Joseph Mark Pirrello (Fourth Applicant) Graeme Rogerson (First Respondent) Bruce McHugh (Second Respondent)
Representation:	Counsel: Mr MR Pesman SC/Mr A Di Francesco (Applicants) Mr RS Angyal SC (First Respondent)   Solicitors: Wood Marshall Williams Pty Ltd (Applicants) Macquarie Legal Practice (First Respondent) Equilaw Solicitors (Second Respondent)
File Number(s):	CA 2015/341848
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Date of Decision: 23 October 2015 Before: Bergin CJ in Eq File Number(s): 2013/369921

Judgment

1. BASTEN JA: In January 2006 the applicants purchased shares in a racehorse. The horse did not live up to expectations and, in April 2012, the original purchaser (who had retained a share in the horse) namely the first respondent, Mr Rogerson, sold the horse to the second respondent, Mr Bruce McHugh.

2. The applicants asserted that they had not consented to the sale of their shares in the horse and brought proceedings in the Equity Division in December 2013.

3. The trial ran for four days before Bergin CJ in Eq. In September 2015 the Chief Judge delivered judgment dismissing the claims brought by the applicants against Mr Rogerson for misleading or deceptive conduct but finding that Mr Rogerson did not have authority to sell the applicants’ shares in the horse and making declarations as to their interests in the horse and an order for account against Mr McHugh. The applicants reached a settlement with Mr McHugh.

4. Subsequently, on 23 October 2015, the Chief Judge made orders with respect to costs. It is from those orders that the applicants now seek leave to appeal.

5. The orders required that the applicants pay 75% of Mr Rogerson’s costs and that Mr McHugh pay 25% of the applicants’ costs. Before the Chief Judge the applicants had submitted that costs should be awarded in favour of the successful party on each of the major issues addressed at trial. The Chief Judge, who had had the benefit of hearing the trial, declined to make such an order on the basis that it would give rise to a burdensome process of disaggregation and assessment, in circumstances where much of the evidence went to more than one issue. Although the…