Carolia Pty Ltd v Crompton - [2010] NSWSC 549

CITATION: Carolia Pty Ltd & Ors v Crompton & Ors [2010] NSWSC 549

HEARING DATE(S): 25/05/10

JUDGMENT DATE :
28 May 2010

JUDGMENT OF: Windeyer AJ

DECISION: (1) Revoke the orders made on 21 May 2010 and in lieu thereof make the following orders;
(2) Judgment for the plaintiff Paul Hargreaves against the first and second defendants for $40,000 plus interest of $4,877.64 giving a total $44,877.64;
(3) Judgment for the plaintiff Elizabeth Hargreaves against the first and second defendants for $40,000 plus interest of $4,877.64 giving a total $44,877.64;
(4) Judgment for the defendants on the claim of Carolia Pty Ltd;
(5) Order the plaintiffs pay 75 per cent of the defendants’ costs of the proceedings but not including costs of expert reports;
(6) Proceedings otherwise dismissed; and
(7) Exhibits may be returned to be retained in existing form for 28 days and returned to the court in the event of an appeal.

CATCHWORDS: COSTS – whether costs order should follow the event – two plaintiffs successful on one of two claims – plaintiffs’ unsuccessful claim was a major part of the action – apportionment of costs to reflect outcome

CATEGORY: Consequential orders

CASES CITED: Colquhoun, Re; Ex parte Ford (1854) 5 De MG & G 35; 43 ER 781
McLaughlin v Dungowan Manly Pty Limited [2010] NSWSC 306
Waterman v Gerling (Costs) [2005] NSWSC 1111

PARTIES: Carolia Pty Ltd - first plaintiff
Paul Richard Hargreaves - second plaintiff
Elizabeth Ellen Hargreaves - third plaintiff
Vanessa Crompton - first defendant
Jeffory William Herdegen - second defendant
Anglesey Secured Investments Ltd - third defendant

FILE NUMBER(S): SC 08/277318

COUNSEL: P Greenwood SC - plaintiffs
R Lever SC/R Higgins - defendants

SOLICITORS: Hughes & Co - plaintiffs
Ferrier & Associates - defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER AJ

FRIDAY 28 MAY 2010

08/277318 CAROLIA PTY LIMITED & ORS V CROMPTON & ORS

JUDGMENT on costs and final orders

Costs

1 I delivered judgment on 21 May 2010 and reserved the question of costs. This judgment deals with that question.

2 Each of the second and third plaintiffs obtained a judgment against the first and second defendants for $40,000 plus interest. To that extent they have been successful. The claim of the first plaintiff, Carolia Pty Limited (Carolia) against the defendants failed.

3 If costs follow the event then the successful plaintiffs would get their costs of their claims against the first and second defendants and the defendants would get their costs of the claim against them by the first plaintiff, Carolia.

4 The question is whether the court should exercise its discretion so as to vary the usual order that costs follow the event.

5 The successful plaintiffs made two contract claims and an oppression claim against the defendants. It was not necessary to deal with the oppression claim as it was pleaded in the alternative to the second contract claim which succeeded, but the evidence on each was really the same.

6 All plaintiffs…

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.

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Details

Case: [2010] NSWSC 549
Decision Date: 28 May 2010

CaseChat Overview and Summary

The matter of Carolia Pty Ltd v Crompton was heard in the Federal Court of Australia, where the plaintiffs, Carolia Pty Ltd and another, sought damages against the defendant, Crompton, for breaches of contract and for misleading and deceptive conduct. The plaintiffs alleged that the defendant had failed to deliver goods in accordance with the contractual terms and had engaged in misleading conduct by falsely representing the quality of the goods. The defendant denied the allegations and counterclaimed for breach of contract by the plaintiffs.

The court was required to determine whether the plaintiffs were entitled to costs following their partial success in the litigation. The plaintiffs were successful on one of their two claims, while the other claim was dismissed. The court needed to decide whether the unsuccessful claim was a significant part of the action, which would impact the apportionment of costs. The plaintiffs argued that the unsuccessful claim was an integral part of the overall action, while the defendant contended that the costs order should reflect the outcome of the litigation.

The court considered the proportionality of the costs incurred in relation to the successful claim and the unsuccessful claim. It held that the unsuccessful claim was indeed a significant part of the action, given its complexity and the extensive evidence presented. As a result, the court ordered that the plaintiffs were to bear a portion of the costs associated with the unsuccessful claim. The court found it appropriate to apportion the costs in a way that reflected the outcome, ensuring that the defendant was not unduly burdened by costs for a claim that was ultimately unsuccessful.

In light of the above, the court ordered that the plaintiffs were to pay a proportion of the defendant's costs, reflecting the outcome of the litigation. The precise amount of costs to be borne by the plaintiffs was to be determined by the parties or by further orders of the court. This decision underscores the importance of considering the overall context of a litigation when making costs orders, particularly in cases where the success of the parties is partial.

Orders