CT Money v AFIG Wholesale - [2010] NSWSC 898

CITATION: CT Money v AFIG Wholesale & Anor [2010] NSWSC 898

HEARING DATE(S): 10 August 2010

JUDGMENT DATE :
18 August 2010

JUDGMENT OF: Ball J

DECISION: 1. The defendants have leave to discontinue the first cross-claim so far as it concerns the second cross defendant;
2. The balance of the proceedings be dismissed;
3. The defendants pay the costs of the second cross defendant;
4. The plaintiff pay the costs of the defendants excluding the costs of the appearance before Gzell J on 22 September 2009 and any costs occasioned by the vacation of that hearing but including the costs of the second cross defendant up until and including 12 December 2008;
5. The defendants pay the plaintiff’s costs of the appearance before Gzell J on 22 September 2009 and any costs occasioned by the vacation of that hearing.

CATCHWORDS: COSTS - hearing to determine separate question - defendant successful on primary point - order that costs follow the event. COSTS - Addition of second defendant - second defendant a necessary party to proceedings - plaintiff liable for costs of second defendant

LEGISLATION CITED: Uniform Civil Procedures Rules 2005 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Johnson’s Tyre Foundry Pty Ltd v Maffra Corp (1948) 77 CLR 544

PARTIES: CT Money Pty Limited ACN 116 882 636 (Plaintiff/First Cross Defendant)
AFIG Wholesale Pty Limited ACN 116 882 636 (First Defendant/First Cross Claimant)
ACN 094 797 618 Pty Limited formerly known as DC Corporation Australia Pty Limited (in liquidation) ACN 094 797 618 (Second Cross Defendant)
Australian Mortgage Securities Pty Limited ACN 003 072 446 (Second Defendant/Second Cross Claimant)

FILE NUMBER(S): SC 2007/258055

COUNSEL: A Cheshire (Plaintiff)
J Svehla (First Cross Defendant)
M Garvin (Second Cross Defendant)

SOLICITORS: McLachlan Thorpe Partners (Plaintiff/First Cross Defendant)
Hicksons (First Defendant/First & Second Cross-Claimant)
Uther Webster & Evans (Second Cross Defendant)

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

18 AUGUST 2010

2007/258055 CT MONEY PTY LTD v AFIG WHOLESALE PTY LTD & ORS

JUDGMENT

1 The present application concerns the costs of a hearing before Young CJ in Eq (as his Honour then was) on 18 and 19 November 2008 and associated costs. In order to address that issue, I need first to give some background, albeit simplified, concerning the proceedings.

2 On 1 November 2005, the plaintiff (CT) acquired the mortgage origination business carried on by DC Corporation Australia Pty Ltd (DC), which is now in liquidation. As a result of the acquisition of that business, CT became entitled as between it and DC to trailing commissions payable to DC by the defendants (together, AFIG) in respect of mortgages arranged with AFIG by DC.

3 Under the terms of the mortgage origination agreement between AFIG and DC (the DC Deed), DC agreed to indemnify AFIG for any loss arising from a mortgage placed with it by DC in certain circumstances and to permit AFIG to set-off the…

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 898
Decision Date: 18 August 2010

CaseChat Overview and Summary

The matter before the court involved CT Money, the plaintiff, and AFIG Wholesale, the defendant. The dispute centred around the determination of costs associated with the proceedings. A hearing was held to decide separate issues, and the defendant emerged victorious on the primary point. The plaintiff subsequently added a second defendant to the proceedings, who was deemed a necessary party. The court was tasked with deciding whether the plaintiff should bear the costs of the second defendant.

The legal issues for the court to resolve were twofold. Firstly, the court needed to decide whether the costs of the hearing to determine the separate question should follow the event, in light of the defendant's success on the primary point. Secondly, the court had to determine whether the plaintiff should be liable for the costs of the second defendant, given that the second defendant was a necessary party to the proceedings. The court considered the relevant legal principles and authorities in its analysis.

In its decision, the court held that the costs of the hearing to determine the separate question should follow the event, meaning the defendant was entitled to recover costs. The court found that the plaintiff's success on the primary point justified this outcome. Regarding the second defendant, the court ruled that the plaintiff was liable for the costs of the second defendant, as the second defendant was a necessary party to the proceedings. The court's reasoning was based on the necessity of the second defendant's inclusion in the case and the plaintiff's responsibility for adding them.

The court's final orders were that the defendant was entitled to recover the costs of the hearing to determine the separate question, and the plaintiff was liable for the costs of the second defendant. The court's decision provided clarity on the allocation of costs in the proceedings, taking into account the outcomes of the legal issues and the specific circumstances of the case.

Orders