Coastline Constructions (Aust) Pty Ltd v Kakavas

[2010] NSWSC 62

CITATION:	Coastline Constructions (Aust) Pty Ltd & Ors v Kakavas & Ors [2010] NSWSC 62
HEARING DATE(S):	4 February 2010
JUDGMENT DATE :	16 February 2010
JUDGMENT OF:	Schmidt J
DECISION:	1. The first defendant is to pay the second plaintiff's costs of the proceedings as agreed or assessed. 2. The first cross claimant and the first cross defendant to pay their own costs on the cross claim.
CATCHWORDS:	PROCEDURE - costs - general rule costs follow the event - multiple issues - failure on one issue - no departure from general rule - refusal of costs of successful party - nominal success on cross claim - each party to bear their own costs of cross claim
CASES CITED:	Coastline Constructions (Aust) Pty Ltd & Ors v Kakavas & Ors [2009] NSWSC 1438 Hughes v Western Australian Cricket Association (Inc) & Ors [1986] FCA 382
PARTIES:	First Plaintiff - Coastline Constructions (Aust) Pty Limited Second Plaintiff - Crackers Corporation Pty Ltd Third Plaintiff/Cross Defendant - Jarrod McCracken First Defendant/Cross Claimant - Harry Kakavas Second Defendant - William Kerwick Third Defendant - Jerry Pilarinos
FILE NUMBER(S):	SC 14406/07
COUNSEL:	Plaintiffs - Mr MR Gracie First Defendant/Cross Claimant - Mr M Coffey, solicitor
SOLICITORS:	Plaintiffs - Crisp Legal First Defendant/Cross Claimant - Gells Lawyers

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT J

TUESDAY, 16 FEBRUARY 2010

14406/07 COASTLINE CONSTRUCTIONS (AUST) PTY LTD AND ORS v HARRY KAKAVAS AND ORS

JUDGMENT

1 HER HONOUR: Judgment was given in this matter on 18 December 2009 (see Coastline Constructions (Aust) Pty Ltd & Ors v Kakavas & Ors [2009] NSWSC 1438), with the parties directed to approach if there was any disagreement in relation to the costs orders to be made. What now has to be determined is the costs order to be made as between Mr McCracken and Mr Kakavas. The orders to be made to reflect the judgment have otherwise been agreed.

2 The usual order is that costs should follow the event. Both parties seek certain departures from that approach. Mr McCracken proposes orders that:

4. The first defendant is to pay the second plaintiff's costs of the proceedings as agreed or assessed.

9. The first cross claimant and the first cross defendant to pay their own costs on the cross claim.

3 Mr Kakavas claims no costs should be ordered against him, in relation to Mr McCracken's pursuit of the first agreement and that he should have an order in his favour on the cross claim. Various approaches to apportionment were also suggested.

4 The argument between the parties was shortly put. Reference was made to the judgment of Toohey J in Hughes v Western Australian Cricket Association (Inc) & Ors [1986] FCA 382 where his Honour observed that the costs discretion must be exercised judicially and that there may be a departure from the usual order, for instance where a litigant has succeeded only part of the claim and where it is reasonable that he bear that portion on which he has failed.

5 There is no question that in a case involving multiple issues, that costs may be awarded against the party which succeeds overall, but fails on some issues; that there is a discretion to refuse costs against a successful party, for example where only nominal damages are recovered; and that the costs of the plaintiff’s proceedings and the costs of a cross claim may be separately considered.

6 In this case, Mr McCracken brought proceedings in relation to three agreements. He failed in relation to the claim advanced against Mr Kakavas in relation to the first agreement, as a matter of law, given that it was concluded that orders could not be made against Mr Kakavas in relation to that agreement, he not personally being a party to it. Of the $5,250,000 pursued against Mr Kakavas, $4 million related to the first agreement. Mr McCracken also failed in the claims advanced against the other two defendants.

7 Also to be considered, however, is that the parties joined issue in relation to a myriad of factual issues, including issues raised by Mr Kakavas in relation to the first agreement, on which he failed. Many of the contested factual issues were relevant to a disposal of the claims advanced in relation to the first agreement, as well as other claims brought by Mr McCracken and claims brought by Mr Kakavas in the cross claim which he advanced. Much more time was devoted in the proceedings to a resolution of these matters, than the legal point on which the disposition of the claim in relation to the first agreement finally turned.

8 Mr McCracken comprehensively succeeded on the factual matters in issue, as well as succeeding on the claims brought in relation to the second and third agreements. The legal point on which he failed in relation the first agreement, was but a relatively minor part of the proceedings, albeit an important legal point, given the result, the dismissal of the $4 million claimed in respect of that agreement. Nevertheless, in the circumstances I am satisfied that it would not be just to depart from the usual costs order in relation to the proceedings brought by Mr McCracken against Mr Kakavas, despite Mr McCracken’s loss on that point. Nor would it be fair to attempt to apportion the costs in respect of that issue. I am certainly satisfied that the approach suggested for Mr Kakavas could not fairly reflect what was truly involved in the failure on that issue.

9 Having given some thought to what was involved in this trial and its pursuit against the three defendants, I am satisfied that the just costs order to be made in all of the circumstances is that contended for by Mr McCracken. The other defendants, Mr Pilarinos and Mr Kerwick were obviously necessary witnesses in Mr Kakavas’ case. One of them, Mr Pilarinos, was even subpoenaed to give evidence by Mr Kakavas in the circumstances described in the earlier judgment. That his pursuit of orders against them should result in a departure from the usual order in favour of Mr McCracken and against Mr Kakavas would, in the circumstances, not be just.

10 For his part, Mr Kakavas largely failed in his cross claim, in which he claimed $750,000, as well as unspecified damages in respect of the cross claim in respect of the admitted assault, for which he was awarded $2,000. Mr Kakavas comprehensively failed on the factual and legal issues which he pursued, other than in relation to part of the case advanced in relation to the assault. That assault had never been denied. The only question on which he succeeded in his case, was to achieve a damages order in respect of what was shown to have been a minor assault, as had been revealed in earlier criminal charges to which Mr McCracken had pleaded guilty. That the assault was of the nature claimed by Mr Kakavas was rejected, with the result that only an order of $2,000 was made in favour of Mr Kakavas.

11 In my view, it follows that each side bearing their own costs in relation to the cross claim is the just order to be made in those circumstances,

Orders

12 For those reasons I make the orders otherwise agreed and as to costs, those which Mr McCracken proposed. I order that:

1. The first defendant is to pay the second plaintiff's costs of the proceedings as agreed or assessed.

2. The first cross claimant and the first cross defendant to pay their own costs on the cross claim.

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