Galati v Deans (No 2)

[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.

   1. Galati v Deans [2023] NSWCA 13.

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…