Grima v RFI (Aust) Pty Ltd (No 2) - [2014] NSWCA 397

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Appeal

New South Wales

Case Title: Grima v RFI (Aust) Pty Ltd (No 2)

Medium Neutral Citation: [2014] NSWCA 397

Hearing Date(s): On the papers

Decision Date: 21 November 2014

Before: Meagher JA; Barrett JA; Emmett JA

Decision:
1. Set aside orders (1), (3), (5), (6) and (8) made by the primary judge on 10 February 2014.

2. In lieu of those orders, order:

(a) Judgment for Carmel Grima ("Mr Grima") against RFI (Aust) Pty Ltd ("RFI") in the sum of $4,395,000.

(b) Judgment for RFI against the Allied Overnight Express Pty Ltd ("Allied") on the first cross claim in the sum of $82,500.

(c) Judgment for Allied against RFI on the second cross claim in the sum of $2,186,406.62 ("the recovery sum").

(d) RFI is to pay interest to Allied on the recovery sum in the amount of $410,373.76.

(e) RFI is entitled to deduct the sum of $82,500 from the recovery sum in part satisfaction of its judgment against Allied referred to in 2(d) above.

3. Mr Grima's entitlement to interest (if any) against RFI is remitted for determination by a Judge of the Common Law Division.

4. The Court, with the consent of the parties, makes the following notations:

(a) Allied has paid to RFI the sum of $165,000 in satisfaction of its liability arising from the first cross claim as found by the primary judge.

(b) RFI will repay the sum of $82,500 to Allied, being the difference between Allied's apportioned liability at trial and its apportioned liability before this Court.

(c) RFI has paid to Allied the sum of $1,857,803.56 in partial satisfaction of the second cross claim.

(d) RFI has paid to Allied the sum of $312,443.43 in partial satisfaction of the interest accrued on the recovery sum.

5. Order that RFI pay Mr Grima's costs of the appeal brought by notice of appeal filed on 13 February 2014 and that there be no order as to costs either in favour of or against Allied.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PROCEDURE - costs - whether costs should be apportioned to separate issues - no matter of principle

Cases Cited: Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345

Category: Costs

Parties: Carmel Grima (Appellant)
RFI (Aust) Pty Ltd t/as Regen Foam (First Respondent)
Allied Overnight Express Pty Ltd (Second Respondent)

Representation

- Counsel: Counsel:
E G Romaniuk SC/S J Maybury (Appellant)
M T McCulloch SC/JC Chapman (First Respondent)
J P Guihot (Second Respondent)

- Solicitors: Solicitors:
Edwards Michael Lawyers (Appellant)

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: [2014] NSWCA 397
Decision Date: 21 November 2014

CaseChat Overview and Summary

In *Grima v RFI (Aust) Pty Ltd (No 2)*, the New South Wales Court of Appeal considered an appeal concerning the determination of monetary judgments and the apportionment of costs. The primary dispute involved claims and cross-claims between Carmel Grima, RFI (Aust) Pty Ltd, and Allied Overnight Express Pty Ltd.

The Court of Appeal was required to determine the appropriate monetary judgments to be entered in favour of each party, including the principal sums and accrued interest, and to decide the incidence of costs for the appeal. The appeal also involved a consideration of whether costs should be apportioned between separate issues, although the Court noted this was not a matter of principle.

The Court set aside certain orders made by the primary judge and substituted new orders. These new orders established specific monetary judgments for Mr Grima against RFI, and for RFI against Allied on a first cross-claim, and for Allied against RFI on a second cross-claim, including the calculation of interest. The Court also remitted the determination of Mr Grima's entitlement to interest against RFI to a Judge of the Common Law Division. The Court, with the consent of the parties, made specific notations regarding payments already made and adjustments to be made between RFI and Allied. Finally, the Court ordered RFI to pay Mr Grima's costs of the appeal, with no order as to costs concerning Allied.

Orders

Orders of the court

1. Set aside orders (1), (3), (5), (6) and (8) made by the primary judge on 10 February 2014.

2. In lieu of those orders, order:

(a) Judgment for Carmel Grima ("Mr Grima") against RFI (Aust) Pty Ltd ("RFI") in the sum of $4,395,000.

(b) Judgment for RFI against the Allied Overnight Express Pty Ltd ("Allied") on the first cross claim in the sum of $82,500.

(d) RFI is to pay interest to Allied on the recovery sum in the amount of $410,373.76.

(e) RFI is entitled to deduct the sum of $82,500 from the recovery sum in part satisfaction of its judgment against Allied referred to in 2(d) above.

3. Mr Grima's entitlement to interest (if any) against RFI is remitted for determination by a Judge of the Common Law Division.

4. The Court, with the consent of the parties, makes the following notations:

(a) Allied has paid to RFI the sum of $165,000 in satisfaction of its liability arising from the first cross claim as found by the primary judge.

(b) RFI will repay the sum of $82,500 to Allied, being the difference between Allied's apportioned liability at trial and its apportioned liability before this Court.

(d) RFI has paid to Allied the sum of $312,443.43 in partial satisfaction of the interest accrued on the recovery sum.

5. Order that RFI pay Mr Grima's costs of the appeal brought by notice of appeal filed on 13 February 2014 and that there be no order as to costs either in favour of or against Allied.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Grima v RFI (Aust) Pty Ltd (No 2)
Medium Neutral Citation:	[2014] NSWCA 397
Hearing Date(s):	On the papers
Decision Date:	21 November 2014
Before:	Meagher JA; Barrett JA; Emmett JA
Decision:	1. Set aside orders (1), (3), (5), (6) and (8) made by the primary judge on 10 February 2014. 2. In lieu of those orders, order: (a) Judgment for Carmel Grima ("Mr Grima") against RFI (Aust) Pty Ltd ("RFI") in the sum of $4,395,000. (b) Judgment for RFI against the Allied Overnight Express Pty Ltd ("Allied") on the first cross claim in the sum of $82,500. (c) Judgment for Allied against RFI on the second cross claim in the sum of $2,186,406.62 ("the recovery sum"). (d) RFI is to pay interest to Allied on the recovery sum in the amount of $410,373.76. (e) RFI is entitled to deduct the sum of $82,500 from the recovery sum in part satisfaction of its judgment against Allied referred to in 2(d) above. 3. Mr Grima's entitlement to interest (if any) against RFI is remitted for determination by a Judge of the Common Law Division. 4. The Court, with the consent of the parties, makes the following notations: (a) Allied has paid to RFI the sum of $165,000 in satisfaction of its liability arising from the first cross claim as found by the primary judge. (b) RFI will repay the sum of $82,500 to Allied, being the difference between Allied's apportioned liability at trial and its apportioned liability before this Court. (c) RFI has paid to Allied the sum of $1,857,803.56 in partial satisfaction of the second cross claim. (d) RFI has paid to Allied the sum of $312,443.43 in partial satisfaction of the interest accrued on the recovery sum. 5. Order that RFI pay Mr Grima's costs of the appeal brought by notice of appeal filed on 13 February 2014 and that there be no order as to costs either in favour of or against Allied. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PROCEDURE - costs - whether costs should be apportioned to separate issues - no matter of principle
Cases Cited:	Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345
Category:	Costs
Parties:	Carmel Grima (Appellant) RFI (Aust) Pty Ltd t/as Regen Foam (First Respondent) Allied Overnight Express Pty Ltd (Second Respondent)
Representation
- Counsel:	Counsel: E G Romaniuk SC/S J Maybury (Appellant) M T McCulloch SC/JC Chapman (First Respondent) J P Guihot (Second Respondent)
- Solicitors:	Solicitors: Edwards Michael Lawyers (Appellant)