Galati v Deans (No 2)

Case [2023] NSWCA 252


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Galati v Deans (No 2) [2023] NSWCA 252
Hearing dates: On the papers
Date of orders: 24 October 2023
Decision date: 24 October 2023
Before: White JA; Basten AJA
Decision:

(1)   With respect to the costs of the appeal, order that the respondents pay 50% of the appellant’s costs in this Court.

(2)   With respect to the costs of the plaintiff’s statement of claim in the Equity Division, order that the defendants pay 30% of the plaintiff’s costs of that proceeding, noting that:

(i)   interlocutory costs orders made in the Equity Division are not affected; and

(ii)   order 4 made in the Equity Division as to the costs of the fourth amended cross-claim is not affected.

Catchwords:

PRACTICE AND PROCEDURE – costs – whether costs should follow the event – identifying “event” – party obtaining relief unsuccessful on certain issues – whether to be deprived of proportion of costs – reassessing costs of trial

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Supreme Court Act 1970 (NSW), s 45AA

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Baker v Towle [2008] NSWCA 73

Bostik Australia Pty Ltd v Liddiard(No 2) [2009] NSWCA 304

Bowen Investments Pty Ltd v Tabcorp Holdings Ltd(No 2) [2008] FCAFC 107

Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266

Galati v Deans [2023] NSWCA 13

Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin (No 2) [2021] NSWCA 98

State of New South Wales v Stanley [2007] NSWCA 330

Category:Costs
Parties: Dominic Gerardo Galati (Appellant)
Robert Paton Deans (First Respondent)
Fishbank Development Corporation Pty Limited (Second Respondent)
TRHS Pty Ltd (Third Respondent)
Felan’s Fisheries Pty Ltd (Fourth Respondent)
Trading Australia Pty Ltd (in liq) (Fifth Respondent)
Representation:

Counsel:
P Herzfeld SC / G Drew (Appellant)
G K Burton SC / P Barham (First to Fourth Respondents)

Solicitors:
Harris Friedman Lawyers (Appellant)
FCB Workplace Law (First to Fourth Respondents)
File Number(s): 2021/264875
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity Division
Citation:

Galati v Deans [2021] NSWSC 1094

Date of Decision:
1 September 2021
Before:
Ward CJ in Eq
File Number(s):
2016/360462

JUDGMENT

  1. THE COURT: On 15 February 2023 the Court delivered a judgment in these proceedings. [1] Mr Galati was partly successful in his appeal, but the circumstances warranted the parties being given an opportunity to file and exchange written submissions as to the appropriate costs orders to be made, both in this Court and below. The parties availed themselves of that opportunity, each identifying the orders proposed and the basis of the proposal.

  2. In the meantime, however, one judge in the original hearing, Macfarlan JA, had retired. Two judges may deal with outstanding issues in an appeal where that situation arises, pursuant to s 45AA of the Supreme Court Act 1970 (NSW), with the consent of the parties. That consent was sought…

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AGLC
Galati v Deans (No 2) [2023] NSWCA 252
Case
[2023] NSWCA 252
Decision Date

CaseChat Overview and Summary

In *Galati v Deans (No 2)*, the New South Wales Court of Appeal considered an application for costs following a trial and appeal. The dispute concerned the allocation of costs where a party had been successful on some issues but unsuccessful on others, and the court was required to determine how the "event" should be identified for the purpose of awarding costs.

The primary legal issues before the Court of Appeal were whether the general rule that costs follow the event should be applied, and if so, how the "event" should be defined in circumstances where the plaintiff had obtained some relief but had been unsuccessful on significant aspects of their claim. The court also had to consider whether to depart from the usual order and deprive a party of a proportion of their costs due to their mixed success.

The Court of Appeal reasoned that the "event" in this context was not a single, discrete outcome but rather the overall result of the litigation, taking into account the success and failure of each party on the various issues. Applying this principle, the court determined that a departure from the usual costs order was warranted. The court ordered that the respondents pay 50% of the appellant's costs of the appeal, and 30% of the plaintiff's costs of the statement of claim in the Equity Division, acknowledging that interlocutory costs orders and specific costs orders relating to a cross-claim remained unaffected.

Orders

Orders of the court

(1) With respect to the costs of the appeal, order that the respondents pay 50% of the appellant’s costs in this Court.

(2) With respect to the costs of the plaintiff’s statement of claim in the Equity Division, order that the defendants pay 30% of the plaintiff’s costs of that proceeding, noting that:

(i) interlocutory costs orders made in the Equity Division are not affected; and

(ii) order 4 made in the Equity Division as to the costs of the fourth amended cross-claim is not affected.

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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