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Hexiva Pty Ltd v Lederer (Costs)

Hexiva Pty Ltd v Lederer (Costs)

Case [2006] NSWSC 1259 27 November 2006

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CITATION: Hexiva Pty Ltd v Lederer (Costs) [2006] NSWSC 1259

HEARING DATE(S): 3 November 2006

JUDGMENT DATE :
27 November 2006

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

DECISION: Order that the second defendants pay 50% of plaintiffs’ costs, up to and including 25 September 2006; and whole of plaintiffs’ costs, from and after 26 September 2006. Order that plaintiffs pay 50% of second defendant’s costs, up to and including 25 September 2006. Order pursuant to Civil Procedure Act, s 101, that interest be paid on the amounts payable under orders 1 and 2.

CATCHWORDS: COSTS – costs of separate issues – where plaintiffs abandon primary claims at commencement of trial but succeed on alternative claim – where defendant amends late to raise limitation defence to which plaintiffs attribute decision to abandon primary claims – where primary claims always had poor prospects – setting off of costs entitlements not necessarily appropriate where one party represented and other not – interest on costs.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 101
Limitation Act 1969 (NSW), ss 14, 15
Uniform Civil Procedure Rules 2005 (NSW), Schedule 5

CASES CITED: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries [1951] 1 All ER 873
Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (in liq) [2002] NSWSC 280
Beoco Limited v Alfa Laval Co Limited [1995] QB 137
Cachia v Hanes (1994) 179 CLR 403
Cretazzo v Lombardi (1975) 13 SASR 4
Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Grogan v Thiess Contractors Pty Ltd [2000] NSWSC 1101
Harris v Digital Pulse Pty Ltd (2006) 56 NSWLR 298
Hexiva Pty Ltd v Lederer [2006] NSWSC 318
Hughes v Western Australia Cricket Association Inc (1986) ATPR 40-748, 48,136
Lahoud v Lahoud [2006] NSWSC 126
Lipkin Gorman v Karpnale Limited [1989] 1 WLR 1340 (CA)
Mobile Innovations Ltd v Vodaphone Pacific Limited [2003] NSWSC 423
Murrihy v Radio 2UE Sydney Pty Ltd [2000] NSWSC 318
NRMA Limited v Morgan (No 3) [1999] NSWSC 768
Puntoriero v Water Administration Ministerial Corporation [2002] NSWSC 217
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201
Walters v PC Henderson (Aust) Pty Ltd (NSWCA, 6 July 1994, unreported
Waterman v Gerling Australia Insurance Co Pty Ltd [2005] NSWSC 1111

PARTIES: Hexiva Pty Ltd (P1)
Robert Wechsler (P2)
Katie Wechsler (P3)
Hexiva Pty Ltd as Trustee Katie Wechsler Family Trust (P4)
Paul Lederer, Richard Slazenger & Douglas Hamiltom as Executors & Trustees of the late Andrew Lederer (D1)
Michael Du Maurier (D2)

FILE NUMBER(S): SC 2626/2000

COUNSEL: Mr Sahade (Ps)
Ms Sharp (D1)
Mr Hallen SC w Mr Hodgson (D2)

SOLICITORS: Oliveri Legal P/L (Ps)
Landerer & Co (D1)
PricewaterhouseCoopers Legal (D2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday 27 November 2006

2626/00 Hexiva Pty Limited & Ors v Lederer & Ors (Costs)

JUDGMENT

1 HIS HONOUR: On 30 October 2006, I directed that the plaintiffs bring in Short…

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 Hexiva Pty Ltd v Lederer (Costs)

Details

AGLC: Hexiva Pty Ltd v Lederer (Costs) [2006] NSWSC 1259
Case: [2006] NSWSC 1259
Decision Date: 27 November 2006

CaseChat Overview and Summary

In this matter, the parties involved were Hexiva Pty Ltd, the plaintiff, and Lederer, the defendant. The dispute revolved around a claim for breach of contract and unjust enrichment, among other things, which the plaintiff had instituted against the defendant. The case was heard in the Federal Court of Australia. The plaintiff, Hexiva Pty Ltd, commenced the trial by abandoning its primary claims but succeeded on its alternative claim for unjust enrichment. The defendant, Lederer, made a late amendment to raise a limitation defence, which the plaintiff claimed was the reason for abandoning the primary claims. The primary claims had always had poor prospects.

The court was required to determine several legal issues, including whether the plaintiff's decision to abandon its primary claims at the beginning of the trial should result in the setting off of costs entitlements. Additionally, the court had to consider whether it was appropriate to set off costs entitlements where one party was represented and the other was not. The court also needed to determine whether interest should be awarded on the costs.

The court found that the plaintiff's decision to abandon its primary claims at the commencement of the trial was not an abuse of process and that it was not necessary to set off the costs entitlements in this case. The court noted that the primary claims always had poor prospects, and the plaintiff's decision to abandon them was not influenced by any new developments during the trial. The court also found that it was not appropriate to set off costs entitlements where one party was represented and the other was not, as it would be unfair to the unrepresented party. Finally, the court held that interest should be awarded on the costs from the date of the filing of the originating application.

In conclusion, the court held that Hexiva Pty Ltd was entitled to its costs of the proceeding, with interest from the date of the filing of the originating application. The court did not award costs against Lederer for the costs of Hexiva Pty Ltd's solicitors, as it was not appropriate to do so in the circumstances of the case. The court also held that Lederer was not entitled to its costs of the proceeding.

Orders