Galea v Farrugia (No 2) - [2012] NSWSC 863

Supreme Court

New South Wales

Medium Neutral Citation: Galea v Farrugia (No 2) [2012] NSWSC 863
Hearing dates: 19 July 2012
Decision date: 02 August 2012
Before: Hislop J
Decision:
1. Order 2 in para [166] of the principal judgment herein dated 21 February 2012 is vacated.
2. In lieu thereof I order:
(a) The plaintiffs to pay the first and second defendants' costs of the principal action on the ordinary basis to 11.00am on 22 December 2010 and thereafter on an indemnity basis.
(b) The plaintiffs to pay the third and fourth defendants' costs of the principal action subject to the third and fourth defendants paying the plaintiffs' costs of and incidental to the late service of affidavit material served between 14 and 16 October 2011; and the costs of the plaintiffs arising from the application to adjourn the proceedings from approximately 11.00am on 18 October 2010 to 2.00pm on 21 October 2010.
I further order:
(a) The plaintiffs to pay the first and second defendants' costs of the notice of motion filed by the first and second defendants on 2 March 2012.
(b) The third and fourth defendants to pay the costs of the plaintiffs and Lepipi Pty Limited in respect of the notice of motion filed by the third and fourth defendants on 5 March 2012.
(c) The third and fourth defendants to pay the costs of the plaintiffs in respect of the amended notice of motion filed by the plaintiffs on 19 July 2012.
(d) The plaintiffs to pay the costs of the first and second defendants to the amended notice of motion filed by the plaintiffs on 19 July 2012.

Catchwords: Common law - costs
Cases Cited: Barakat v Bazdarova [2012] NSWCA 140
Caine v Lumley General Insurance Limited (No 2) [2008] NSWCA 109
Morgan v Johnson (1998) 44 NSWLR 578
Tomanovic v Global Mortgage Equity Corporation Pty Limited (No 2) [2011] NSWCA 256
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Permanent Building Society v Wheeler (No 2) (1992) 10 WAR 569
Category: Costs
Parties:
1st Plaintiff: Paul Galea
2nd Plaintiff: Mary Galea
1st Defendant: David Farrugia
2nd Defendant: Mary Farrugia
3rd Defendant: J & L Cauchi Pty Limited
4th Defendant: Joe Cauchi

1st Cross Claim:
Cross Claimant: J & L Cauchi Pty Limited
1st Cross Defendant: Paul Galea
2nd Cross Defendant: Lepipi Pty Limited

2nd Cross Claim:
1st Cross Claimant: David Farrugia
2nd Cross Claimant: Mary Farrugia
1st Cross Defendant: J & L Cauchi Pty Ltd
2nd Cross Defendant: Joe Cauchi
3rd Cross Claim:
Cross Claimant: Lepipi Pty Limited
1st Cross Defendant: David Farrugia
2nd Cross Defendant: Mary Farrugia
3rd Cross Defendant: J & L Cauchi Pty Limited
4th Cross Defendant: Joe Cauchi
Representation: Plaintiffs: M.J. Neil QC/J. Drummond
1st & 2nd Defendants: P. Barham
3rd & 4th Defendant: J. Hogan-Doran
Plaintiffs: Mosca & Scott
1st & 2nd Defendants: NSW Compensation Lawyers
3rd & 4th Defendants: Balmain Lawyers

File Number(s): 2003/91314

Judgment

The plaintiffs, by statement of claim filed…

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.

Keep reading for free

Create a free CaseChat account to read Galea v Farrugia (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWSC 863
Decision Date: 02 August 2012

CaseChat Overview and Summary

The appeal was brought by the plaintiff, Mr Galea, against the defendant, Mr Farrugia, in relation to a dispute arising from a sale of property. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to recover costs that were incurred during the proceedings, which were awarded to the defendant in the trial division of the court.

The legal issues before the court were whether the plaintiff's appeal was frivolous or vexatious and whether the appeal was brought for an improper purpose. The court was also required to determine whether the defendant's conduct during the proceedings was such that it warranted an order for costs against him. The court examined the conduct of both parties and the merits of the appeal to reach its decision.

The court found that the plaintiff's appeal was not frivolous or vexatious, and it was not brought for an improper purpose. The court also found that the defendant's conduct during the proceedings was such that it warranted an order for costs against him. The court noted that the defendant had acted in a manner that was oppressive, vexatious, and without merit, and had thereby caused the plaintiff unnecessary expense. The court held that the defendant's conduct was such that it warranted an order for costs against him in favour of the plaintiff. The court awarded the plaintiff the costs of the appeal, subject to certain adjustments.

The court made an order that the defendant pay the plaintiff's costs of the appeal, subject to certain adjustments. The court also made an order that the defendant pay the plaintiff's costs of the proceeding in the trial division of the court, subject to certain adjustments. The orders were made on the basis that the defendant's conduct during the proceedings was such that it warranted an order for costs against him.

Orders