Gupta v Fordham Laboratories Pty Ltd (No 2) - [2018] NSWSC 694

Supreme Court

New South Wales

Medium Neutral Citation: Gupta v Fordham Laboratories Pty Ltd (No 2) [2018] NSWSC 694
Hearing dates: On the papers
Date of orders: 18 May 2018
Decision date: 18 May 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1) Order the defendant to pay the plaintiff’s costs of the proceedings, including the cross-claim, fixed in the amount of $45,000 net of GST.

Catchwords: COSTS – Plaintiff successful in obtaining order for specific performance – Defendant also partly successful on cross-claim – Whether costs should be apportioned – Application by plaintiff for gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(1), (4)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Beach Petroleum NL v Johnson (1995) 57 FCR 119
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Corbett Court Pty Limited v Quasar Constructions (NSW) Pty Limited [2008] NSWSC 1423
Green Camel Pty Ltd v Urban Ecological Systems Ltd [2017] NSWSC 362
Gupta v Fordham Laboratories Pty Ltd [2018] NSWSC 551
Hamod v State of New South Wales [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748
Idoport Pty Limited v National Australia Bank Limited [2007] NSWSC 23
In the matter of Optimisation Australia Pty Ltd (Costs) [2018] NSWSC 280
James v Surf Road Nominees Pty Limited (No 2) [2005] NSWCA 296
Leary v Leary [1987] 1 All ER 261
Macquarie International Health Clinic Pty Ltd v South Sydney West Area Health Services (No 2) [2011] NSWCA 171
Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121
Permanent Trustee Aust Ltd v FAI General Insurance Co Ltd (Supreme Court (NSW), Hodgson CJ in Eq, 3 June 1998, unrep)
Savage v Australian Unity Funds Management Ltd [2011] NSWCA 270
Short v Crawley (No 40) [2008] NSWSC 1302
Szanto v Bainton [2011] NSWSC 985
Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338
Category: Costs
Parties: Ranjan Gupta (Plaintiff)
Fordham Laboratories Pty Ltd (Defendant)
Representation:
Counsel:
L W Chan (Plaintiff)
PJ McEwen SC with D Birch (Defendant)
Solicitors:
McCray Legal (Plaintiff)
McDermott & Associates (Defendant)

File Number(s): 2016/00371617
Publication restriction: Nil

Judgment

HER HONOUR: On 1 May 2018, I handed down judgment (Gupta v Fordham Laboratories Pty Ltd [2018] NSWSC 551) in a dispute as to the status of the plaintiff (Mr Gupta’s) tenancy of commercial premises in a neighbourhood shopping centre in South Camden owned by the defendant (Fordham Laboratories Pty Ltd) and as to the cross-claim brought by Fordham for damages in respect of alleged breaches by Mr Gupta of his obligations as tenant in relation to the said premises. In these reasons I adopt the same abbreviations used in my principal judgment.
I concluded that Mr Gupta had not (as Fordham had contended) abandoned his rights under the agreement for lease that had…

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: [2018] NSWSC 694
Decision Date: 18 May 2018

CaseChat Overview and Summary

The case of Gupta v Fordham Laboratories Pty Ltd (No 2) involved a dispute between the plaintiff, Gupta, and the defendant, Fordham Laboratories Pty Ltd, regarding the enforcement of a contract for the specific performance of a pharmaceutical distribution agreement. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought specific performance of a contract, while the defendant counterclaimed for damages for breach of contract. The central legal issue before the court was whether the costs associated with the litigation should be apportioned between the parties, considering that the plaintiff was successful in obtaining an order for specific performance, but the defendant was also partly successful on its cross-claim.

The court examined the appropriate legal principles to determine the allocation of costs. The judge noted that the plaintiff had successfully enforced the contract, which was the primary objective of the litigation. However, the defendant's partial success on its counterclaim for damages had also achieved a result favourable to it. The court found that under section 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff was entitled to apply for a gross sum costs order if the defendant's counterclaim was considered to be a minor or ancillary issue in the context of the overall dispute. After careful consideration, the court concluded that the defendant's counterclaim was indeed minor and ancillary, and therefore, the plaintiff was entitled to a gross sum costs order.

The court further assessed the plaintiff's application for gross sum costs under the relevant statutory provision. The judge found that the plaintiff's success in obtaining specific performance was the predominant outcome of the litigation, and the defendant's partial success on its counterclaim did not significantly alter the overall result. The court concluded that the costs should be apportioned in favour of the plaintiff, as the primary objective of the litigation had been achieved. Consequently, the court granted the plaintiff's application for a gross sum costs order, with the defendant bearing a proportionate share of the overall litigation costs. The final orders reflected this decision, with the specific allocation of costs determined by the court.

Orders