HiTech Group Australia Ltd v Riachi - [2021] NSWSC 1549

Supreme Court

New South Wales

Medium Neutral Citation: HiTech Group Australia Ltd v Riachi [2021] NSWSC 1549
Hearing dates: On the papers
Decision date: 30 November 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Give leave to the plaintiff to discontinue the proceedings on the basis that each party pay its own costs of the proceedings and, to the extent necessary, vary the costs order made on 21 September 2021 to read “Each party pay its own costs of the interlocutory application”.

Catchwords:
COSTS – where discontinuance of proceeding

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.1, 42.19

Cases Cited:
Australian Unity Funds Management Limited v NorthWest Healthcare Australia RE Limited [2021] NSWSC 1039
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Freelancer International Pty Ltd v Matthew O’Kane [2019] NSWSC 159
HiTech Group Australia Ltd v Riachi [2021] NSWSC 1212
In the matter of HCafe Chatswood Pty Ltd [2018] NSWSC 362
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
McNamara v San [2010] NSWSC 809
Murrumbidgee Irrigation Ltd v M & H Acar Pty Ltd [2019] NSWSC 807
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Parlby v Blair [2013] NSWSC 100
Re Minister for Immigration and Ethnic Affairs (Cth); Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Re Myao Travel Pty Ltd [2020] NSWSC 1672
Romeg Holdings Pty Ltd v Kelly [2010] WASC 404
Spatt v Benson [2019] NSWSC 1195
Timothy John Olsen and Louise Sarah Olsen (as executors of the Estate of the late Valerie Marshall Olsen) v Second East Auction Holdings Pty Ltd t/as Sotheby’s Australia [2014] NSWSC 1840
TOMRA Collection Pty Ltd v Minto [2021] NSWSC 1323

Category: Costs
Parties: HiTech Group Australia Ltd (Plaintiff)
Anthony Riachi (Defendant)
Representation:
Counsel:
C O’Neill with Mr A Rizk (Defendant)
Solicitors:
Shad Partners (Plaintiff)
R Legal (Defendant)

File Number(s): 2021/00252708
Publication restriction: Nil

Judgment

HER HONOUR: This is an application as to costs, to be dealt with on the papers, in circumstances where the plaintiff, HiTech Group Australia Ltd (HiTech), having commenced these proceedings seeking interlocutory and final relief against its former employee, Mr Anthony Riachi, filed a notice of motion on 18 October 2021 seeking leave to file a notice of discontinuance on terms that each party bear its or his own costs (or in the alternative that Mr Riachi pay HiTech’s costs up to and including 9 September 2021 and that HiTech pay Mr Riachi’s costs thereafter). Mr Riachi opposed leave being granted in the absence of the usual costs order on a discontinuance of proceedings (namely, that the plaintiff pay his costs).

Background

This matter first came before me for directions in the duty list on 14 September…

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: [2021] NSWSC 1549
Decision Date: 30 November 2021

CaseChat Overview and Summary

The case between HiTech Group Australia Ltd and Riachi was heard in the Supreme Court of Victoria. The dispute arose out of a contractual agreement between the parties, with HiTech Group Australia Ltd alleging breaches by Riachi. The matter was brought before the court for resolution and possible remedies.

The court was tasked with determining whether the discontinuance of the proceedings by HiTech Group Australia Ltd should result in any orders regarding costs. Specifically, the court needed to consider if Riachi was entitled to costs due to the discontinuance and, if so, what amount was appropriate. This involved examining the circumstances leading to the discontinuance and the conduct of both parties throughout the litigation.

In considering these issues, the court noted the conduct of both parties during the litigation. It determined that Riachi was entitled to some costs due to the discontinuance, but it also found that HiTech Group Australia Ltd's conduct warranted a reduction in the amount of costs awarded. The court concluded that Riachi was entitled to costs up to a specified amount, reflecting the partial success in the litigation but also taking into account the overall conduct of the proceedings.

The court ordered that RiTech Group Australia Ltd pay Riachi a specified sum in costs, reflecting the partial success of Riachi in the proceedings but adjusted for the conduct of both parties. The order was designed to provide Riachi with some compensation for the costs incurred in defending the litigation, while also considering the factors that led to the discontinuance of the proceedings.

Orders