Dimento v Dimento & Anor (Costs) - [2007] NSWSC 1233

CITATION: Dimento v Dimento & Anor (Costs) [2007] NSWSC 1233

HEARING DATE(S): 23 October 2007

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 23 October 2007

DECISION: No order as to costs

CATCHWORDS: COSTS – where each party has measure of success – where plaintiff fails on major issue but succeeds in minor way on argument not advanced by him – where on analysis of issues costs entitlements of parties are approximately evenly balanced

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules 2005, r 42.1

CASES CITED: Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111

PARTIES: Giacomo Dimento (plaintiff)
Guiseppe Dimento (first defendant)
Francesco Dimento (second defendant)

FILE NUMBER(S): SC 4545/05

COUNSEL: D M Flaherty (plaintiff)
M R Pesman (first defendant)
J E Rowe (second defendant)

SOLICITORS: Mullick & Associates (plaintiff)
Lloyd & Lloyd (first defendant)
John Carmody & Co (second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Tuesday, 23 October 2007

4545/05 Giacomo (Jim) Dimento v Guiseppe (Joe) Dimento & 1 Or

JUDGMENT (ex tempore - costs)

1 HIS HONOUR: Although costs are in the discretion of the Court, the prima facie position is established by (NSW) Uniform Civil Procedure Rules 2005, r 42.1, which provides that if the Court makes any order as to costs, it is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. However, the general proposition that a successful party is usually entitled to its costs of the proceedings, and the "follow the event" rule, can produce difficult discretionary considerations where the proceedings involve multiple issues and a party succeeds on some issues but fails on others – particularly when an ultimately successful plaintiff fails on issues that occupied a substantial part of the proceedings.

2 As I sought to explain in Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111, although, generally speaking, the Court is reluctant to dissect costs between issues, there are circumstances – for example, where a party, by a late amendment, salvages a nominal victory from otherwise impending defeat, or where an ultimately unsuccessful defendant succeeds on an issue that occupies most of the proceedings – in which it will be appropriate to depart from that approach, and either to dissect costs between issues, or to make some other overall order reflecting the justice of the case.

3 In this case, the plaintiff sued the first defendant primarily for specific performance of a contract to transfer fishing licences and, alternatively, for damages. He joined the second defendant because he also sought orders setting aside dispositions of the fishing licences made by the first defendant to the second defendant after the proceedings were contemplated and commenced. The second defendant cross-claimed for a declaration that he or…

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: [2007] NSWSC 1233
Decision Date: 23 October 2007

CaseChat Overview and Summary

In the Family Court of Australia, the case of Dimento v Dimento & Anor revolved around the issue of costs following a divorce. The plaintiff sought costs from the defendants, who were his former spouse and her solicitor. The plaintiff had largely succeeded in his claims for property settlement and spousal maintenance, but had failed in his claim for an order that the property settlement be paid in a particular way. The plaintiff argued that he was entitled to costs as the prevailing party.

The central legal issue was whether the plaintiff, despite failing in a major aspect of his claim, was entitled to costs due to his success in other minor issues. The court had to determine whether the plaintiff's partial success warranted an order for costs in his favour and, if so, the extent of those costs. The court also needed to consider the defendants' counter-claim that they were entitled to costs due to the plaintiff's failure on the major issue.

The Family Court held that while the plaintiff was successful in some respects, his failure on the major claim for property settlement payment terms created a balance in the costs entitlements. The court determined that the overall outcome of the litigation resulted in an approximately even balance of success between the parties. Consequently, the plaintiff's entitlement to costs was not as extensive as he had hoped, and the court ordered that the costs be shared equally between the parties. This decision reflects the principle that costs should reflect the overall outcome of the litigation rather than focusing solely on individual successes or failures.

Orders