Cassaniti v Katavic (No 3) - [2023] NSWCA 247

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cassaniti v Katavic (No 3) [2023] NSWCA 247
Hearing dates: On the papers
Date of orders: 18 October 2023
Decision date: 18 October 2023
Before: Gleeson JA at [1]
Kirk JA at [26]
Adamson JA at [27]
Decision:
CA2022/261720 (Leave to appeal)
(1)   Subject to order (2) made on 23 May 2023, there be no order as to costs of the summons seeking leave to appeal.
CA2022/204856 (Appeal proceedings)
(1)   The first respondent (Mr Katavic) to pay one-third of the appellants’ costs of the appeal.
(2)   The second appellant (Ms Morvillo) to pay 50 per cent of the first and second respondents’ costs of the appeal.
(3)   There be no order as to costs of the summons seeking leave to appeal as between the applicants and the first and second respondents.
(4)   The second appellant (Ms Morvillo) to pay the first, second and third respondents’ costs of the notice of motion filed 5 October 2022.
(5)   There be no order as to costs of the argument as to costs, to the intent that each party bears its own costs.

Catchwords:
COSTS — Costs on appeal — Where appeal allowed in part — Apportionment of costs where mixed outcome on appeal — Where lack of commonality between parties interested in successful and unsuccessful parts of appeal — Whether separate orders or one set of costs appropriate

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 Australian Consumer Law, s 18
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.41

Cases Cited:
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Cassaniti v Katavic [2022] NSWCA 230
Cassaniti v Katavic (No 2) [2023] NSWCA 107
Commonwealth of Australia v Gretton [2008] NSWCA 117
Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197

Category: Costs
Parties: Sam Cassaniti (First appellant)
Nancy Morvillo (Second appellant)
Dennis Katavic (First respondent)
Antalija Developments No 4 Pty Ltd (Second respondent)
Jocelyn Katavic (Third respondent)
Representation:
Counsel:
Mr M Ashhurst SC / Mr D A Allen
Mr T Alexis SC / Mr A L Oakes
Solicitors:
McEvoy Legal (Appellants)
Kamy Saeedi Law (Respondents)

File Number(s): 2022/204856; 2022/261720
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2022] NSWSC 519

Date of Decision:

2 May 2022

Before:

Robb J

File Number(s):

2019/372019

Judgment

GLEESON JA: The Court delivered judgment in the appeal on 23 May 2023: Cassaniti v Katavic (No 2) [2023] NSWCA 107 (the principal judgment). To the extent necessary, the Court granted leave to appeal against the first and second respondents, Mr Katavic and Antalija No 4 Developments No 4 Pty Ltd (Antalija No 4) and dismissed with costs the summons seeking leave to appeal and the appeal against the third respondent, Ms Jocelyn Katavic. The Court allowed the appeal in part (in relation to the misleading conduct claim) and otherwise dismissed the appeal (in relation to the trust claim). The Court directed the parties…

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 Cassaniti v Katavic (No 3)

Details

AGLC: Cassaniti v Katavic (No 3) [2023] NSWCA 247
Case: [2023] NSWCA 247
Decision Date: 18 October 2023

CaseChat Overview and Summary

In *Cassaniti v Katavic (No 3)*, the Court of Appeal of New South Wales considered an application for leave to appeal and the subsequent appeal proceedings concerning the apportionment of costs. The dispute arose from a mixed outcome on appeal, where the appellants were successful in part, leading to complex questions regarding the allocation of legal expenses between the parties.

The primary legal issue before the Court of Appeal was how to apportion costs when an appeal resulted in a partial success for the appellants. Specifically, the Court had to determine whether a single set of costs should be ordered or if separate orders were more appropriate, particularly given the lack of commonality between the parties who were successful in different aspects of the appeal and those who were unsuccessful.

The Court reasoned that a detailed apportionment was necessary due to the distinct interests involved in the successful and unsuccessful parts of the appeal. The orders reflected this, with the first respondent, Mr Katavic, being ordered to pay one-third of the appellants’ costs of the appeal. Conversely, the second appellant, Ms Morvillo, was ordered to pay 50 per cent of the first and second respondents’ costs of the appeal. Further orders addressed the costs of the summons seeking leave to appeal, the notice of motion filed on 5 October 2022, and the argument as to costs, with most of these resulting in no order as to costs, meaning each party was to bear their own.

Orders

Orders of the court

CA2022/261720 (Leave to appeal)

(1) Subject to order (2) made on 23 May 2023, there be no order as to costs of the summons seeking leave to appeal.

CA2022/204856 (Appeal proceedings)

(1) The first respondent (Mr Katavic) to pay one-third of the appellants’ costs of the appeal.

(2) The second appellant (Ms Morvillo) to pay 50 per cent of the first and second respondents’ costs of the appeal.

(3) There be no order as to costs of the summons seeking leave to appeal as between the applicants and the first and second respondents.

(4) The second appellant (Ms Morvillo) to pay the first, second and third respondents’ costs of the notice of motion filed 5 October 2022.

(5) There be no order as to costs of the argument as to costs, to the intent that each party bears its own costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cassaniti v Katavic (No 3) [2023] NSWCA 247
Hearing dates:	On the papers
Date of orders:	18 October 2023
Decision date:	18 October 2023
Before:	Gleeson JA at [1] Kirk JA at [26] Adamson JA at [27]
Decision:	CA2022/261720 (Leave to appeal) (1) Subject to order (2) made on 23 May 2023, there be no order as to costs of the summons seeking leave to appeal. CA2022/204856 (Appeal proceedings) (1) The first respondent (Mr Katavic) to pay one-third of the appellants’ costs of the appeal. (2) The second appellant (Ms Morvillo) to pay 50 per cent of the first and second respondents’ costs of the appeal. (3) There be no order as to costs of the summons seeking leave to appeal as between the applicants and the first and second respondents. (4) The second appellant (Ms Morvillo) to pay the first, second and third respondents’ costs of the notice of motion filed 5 October 2022. (5) There be no order as to costs of the argument as to costs, to the intent that each party bears its own costs.
Catchwords:	COSTS — Costs on appeal — Where appeal allowed in part — Apportionment of costs where mixed outcome on appeal — Where lack of commonality between parties interested in successful and unsuccessful parts of appeal — Whether separate orders or one set of costs appropriate
Legislation Cited:	Competition and Consumer Act 2010 (Cth), Sch 2 Australian Consumer Law, s 18 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.41
Cases Cited:	Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Cassaniti v Katavic [2022] NSWCA 230 Cassaniti v Katavic (No 2) [2023] NSWCA 107 Commonwealth of Australia v Gretton [2008] NSWCA 117 Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197
Category:	Costs
Parties:	Sam Cassaniti (First appellant) Nancy Morvillo (Second appellant) Dennis Katavic (First respondent) Antalija Developments No 4 Pty Ltd (Second respondent) Jocelyn Katavic (Third respondent)
Representation:	Counsel: Mr M Ashhurst SC / Mr D A Allen Mr T Alexis SC / Mr A L Oakes Solicitors: McEvoy Legal (Appellants) Kamy Saeedi Law (Respondents)
File Number(s):	2022/204856; 2022/261720
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2022] NSWSC 519 Date of Decision: 2 May 2022 Before: Robb J File Number(s): 2019/372019