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Galati v Deans (No 3)

Galati v Deans (No 3)

Case [2018] NSWSC 1861 4 December 2018

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Supreme Court

New South Wales

Medium Neutral Citation: Galati v Deans (No 3) [2018] NSWSC 1861
Hearing dates: On the papers
Date of orders: 04 December 2018
Decision date: 04 December 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Order the cross-claimants to pay half of EJC’s costs of the hearing on 16 October 2018 of its notice of motion dated 11 September 2018 and any additional costs relating to the pleading aspects in respect of which relief was sought in that notice of motion.

Catchwords: COSTS – Party/Party – General rule that costs follow the event – Application of the rule and discretion
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 42.1
Cases Cited: Bostik Australia Pty Limited v Liddiard (No 2) [2009] NSWCA 304
Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423
Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 322
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Galati v Deans [2018] NSWSC 1600
Golding v Vella (No 2) [2001] NSWSC 731
Hodge v TCN Channel 9 Pty Ltd (No 2) [2006] NSWSC 1272
Hooker v Grilling (No 2) [2007] NSWCA 214
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Latoudis v Casey (1990) 170 CLR 534; 97 ALR 45; [1990] HCA 59
Lenning v Alexander Proudfoot Co World Headquarters [1991] NSWCA 172
NRMA Ltd v Morgan (No 3) [1999] NSWSC 768
Ohn v Walton (1995) 36 NSWLR 77
Oshlack v Richmond River Council (1998) 193 CLR 72; 152 ALR 83; [1998] HCA 11
Owners Strata Plan No 64970 v Austruc Constructions Ltd (No 5) [2010] NSWSC 568
Roache v News Group Newspapers Ltd [1998] E.M.L.R. 161
Sayour v Elliott (No 2) [2018] NSWSC 146
Short v Crawley (No 40) [2008] NSWSC 1302
Standard Commodities Pty Ltd v Societe Socinter Department Centragel [2005] NSWSC 493; 54 ACSR 496
Stena Rederi Aktiebolag v Austal Ships Sales Pty Ltd [2007] FCA 1141
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; 42 FLR 213; (1979) ATPR 40-141
Category: Costs
Parties: Robert Paton Deans (First Defendant/First Cross-Claimant)
Fishbank Development Corporation Pty Limited (Second Defendant/Second Cross-Claimant)
EJC Pyrmont Pty Ltd (Tenth Cross-Defendant)
Representation:
Counsel:
C Withers (Tenth Cross-Defendant/Applicant on motion)
M Einfeld SC with P Barham (Cross-Claimants/Respondents on motion)
Solicitors:
Johnson Winter & Slattery (Tenth Cross-Defendant/Applicant on motion)
FCB Workplace Law (Cross-claimants/Respondents on motion)

File Number(s): 2016/00360462
Publication restriction: Nil

Judgment

HER HONOUR: On 24 October 2018, I published my reasons in relation to an application by the tenth cross-defendant in these proceedings, EJC Pyrmont Pty Ltd (EJC), for the provision of security for its…

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.

Continue reading Galati v Deans (No 3)

Details

AGLC: Galati v Deans (No 3) [2018] NSWSC 1861
Case: [2018] NSWSC 1861
Decision Date: 04 December 2018

CaseChat Overview and Summary

In Galati v Deans (No 3), the plaintiff, Mr Galati, brought an application for costs against the defendant, Mr Deans, following a dispute over an easement. The case was heard in the Supreme Court of New South Wales. The plaintiff sought an order that costs incurred in the proceedings be paid by the defendant, arguing that the defendant's claim was without merit and had been pursued unreasonably.

The court was required to consider the general rule that costs follow the event, which generally means that the losing party in litigation must pay the winning party's costs. The court also needed to assess whether there were any circumstances that warranted a departure from this general rule, exercising its discretion to order costs in a manner that would be just and equitable.

The court held that the general rule of costs following the event should apply in this case, and that there were no exceptional circumstances warranting a departure from this rule. The court found that the defendant's claim was without merit and had been pursued unreasonably, justifying an order that the plaintiff's costs be paid by the defendant. The court concluded that it would be just and equitable to order the defendant to pay the plaintiff's costs in full.

The court made an order that the defendant pay the plaintiff's costs of the proceeding, including the costs of an appeal to the Court of Appeal and a subsequent application to the Full Court.

Orders