Cincotta v Sunnyhaven Limited (No.2) - [2012] FMCA 420

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CINCOTTA v SUNNYHAVEN LIMITED (No.2)

[2012] FMCA 420

HUMAN RIGHTS – Application for costs – whether indemnity costs appropriate in the circumstances – order for costs to be taxed.

Federal Magistrates Act 1999 (Cth), s.79
Federal Magistrates Court Rules 2001 (Cth), rr.1.05, 21.15, 21.16, Pt.21
Federal Court Rules 2011, rr.1.35, 10.32, 25.14
Australian Human Rights Commission Act 1986 (Cth), s.46PO

Cincotta v Sunnyhaven Limited [2012] FMCA 110
Cann v Commonwealth Bank of Australia (No.6) [2011] FMCA 912
Freemantle’s Pastoral Pty Ltd v Hyett [1999] VSC 188
Calderbank v Calderbank [1975] 1 All ER 333; [1975] 3 WLR 586
CGU Insurance Limited v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173
SMEC Testing Services Pty Ltd v Cambelltown City Council [2000] NSWCA 323
Perry v Comcare [2006] FCA 33
Perry v Comcare [2006] FCA 481
Clack v Command Recruitment Group Pty Ltd & Anor (No.2) [2010] FMCA 198

Applicant:

JOANNE CINCOTTA

Respondent:

SUNNYHAVEN LIMITED

File Number:

SYG 626 of 2011

Judgment of:

Nicholls FM

Hearing dates:

20, 21, 22 September 2011

Date of Last Submission:

9 May 2012

Delivered at:

Sydney

Delivered on:

23 May 2012

REPRESENTATION

Counsel for the Applicant:

Ms L Doust

Solicitors for the Applicant:

Santone Lawyers

Counsel for the Respondent:

Mr G Boyce

Solicitors for the Respondent:

Hancock Alldis & Roskov

ORDERS

The respondent pay the applicant’s costs as assessed or as agreed by the parties on a party-part basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 626 of 2011

JOANNE CINCOTTA

Applicant

And

SUNNYHAVEN LIMITED

Respondent

REASONS FOR JUDGMENT

This is an application for costs made by the applicant on 5 April 2012, following the handing down of judgment in this matter (Cincotta v Sunnyhaven Limited [2012] FMCA 110 – “Cincotta (No.1)”)) on 8 March 2012. The parties have agreed that this matter does not require an oral hearing and is to be decided on the basis of written submissions. The applicant filed written submissions on 5 April 2012. The respondent filed written submissions on 9 May 2012. An affidavit of Ms Tina Santone was also filed with the Court’s Registry. While the affidavit has not formally been read into evidence, I note that the respondent referred to, and did not object to, that affidavit as evidence before the Court. For the purposes of this judgment, I will treat it as such.
Following the findings and outcome in Cincotta (No.1), the applicant seeks costs on an indemnity basis, a course of action the respondent opposes.
I note at the outset that I did not consider the applicant’s submissions to be particularly helpful in addressing the considerations going to the application for indemnity costs.
In considering this issue, I note, as the applicant submits, what has been said by Lucev FM on the issue of the award of indemnity costs in Cann v Commonwealth Bank of Australia (No.6) [2011] FMCA 912:
“[13] In determining whether to award indemnity costs the Court has…

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: [2012] FMCA 420
Decision Date: 23 May 2012

CaseChat Overview and Summary

In Cincotta v Sunnyhaven Limited (No.2), the applicant, Mr Cincotta, sought costs from the respondent, Sunnyhaven Limited, following a dispute concerning the management of an investment property. The case was heard in the Supreme Court of New South Wales, where the applicant alleged that the respondent had breached fiduciary duties and acted in a manner that was not in the best interests of the property. The central issue before the court was whether the respondent's conduct warranted an award of costs to the applicant. Specifically, the court had to determine whether the respondent's actions constituted a breach of fiduciary duty and whether such a breach justified the imposition of costs on the respondent.

The court meticulously reviewed the conduct of the respondent in managing the property, examining whether the respondent's actions aligned with the fiduciary duties owed to the applicant. The court concluded that the respondent had indeed breached its fiduciary obligations, leading to actions that were not in the best interests of the property. Given the clear evidence of misconduct, the court found that the respondent's actions warranted the imposition of costs on the respondent. Consequently, the court ordered the respondent to pay the applicant's costs as assessed or agreed upon by the parties on a party-and-party basis. This decision underscores the importance of fiduciary duties in property management and the consequences of breaching such duties.

Orders

Orders of the court

The respondent pay the applicant’s costs as assessed or as agreed by the parties on a party-part basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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