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

- 4 -

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.

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…

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 62
Decision Date: 16 February 2010

CaseChat Overview and Summary

In Coastline Constructions (Aust) Pty Ltd v Kakavas, the Federal Court considered the allocation of costs between the parties in a case involving multiple issues. The primary dispute concerned breaches of contract and associated damages. The court was tasked with determining the appropriate allocation of costs, particularly in light of the fact that one party had succeeded on some issues while failing on others.

The legal issues before the court included whether the general rule that costs follow the event should be applied, and if there were circumstances that would justify a departure from this principle. The court also had to consider the implications of a party achieving nominal success on a cross claim and how this should impact the costs order. The primary focus was on whether the successful party should be granted costs against the unsuccessful party and whether the unsuccessful party should be required to pay the successful party's costs of the cross claim.

The court found that the general rule that costs follow the event should be adhered to in this case. Despite the plaintiff's success on some issues and failure on others, the court held that there were no exceptional circumstances to warrant a departure from this principle. The court emphasised that each party should bear their own costs, including those associated with the cross claim. This approach ensured that the allocation of costs reflected the overall outcome of the litigation, with neither party receiving an undue financial advantage or disadvantage. Consequently, the court ordered that each party bear their own costs.

Orders