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JR Consulting and Drafting Pty Ltd v Cummings

JR Consulting and Drafting Pty Ltd v Cummings

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Case Copied 23 January 2015 44 min read

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Supreme Court

New South Wales

Medium Neutral Citation: JR Consulting & Drafting Pty Ltd & Anor v Cummings & Ors [2015] NSWSC 10
Hearing dates: 10 December 2014
Decision date: 23 January 2015
Jurisdiction: Equity Division
Before: Black J
Decision:
Parties should bring in agreed short minutes of order to give effect to judgment, including as to costs, within 14 days or, if they are unable to reach agreement, their respective draft short minutes of order and short submissions as to the differences between them.

Catchwords:
PROCEDURE – costs – where principal judgment determined separate question of liability – whether issue of costs as to separate question of liability should be deferred until after determination of quantum of any damages.
PROCEDURE – costs – general rule that costs follow the event – where there has been a mixed outcome in proceedings – whether reason shown to depart from general rule – apportionment of costs.
Legislation Cited: - Australian Consumer Law
- Civil Procedure Act 2005 (NSW) s 98
- Copyright Act 1968 (Cth)
- Trade Practices Act 1974 (Cth) s 53A
- Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.34
Cases Cited: - Ajkay v Hickey & Co Pty Ltd [2011] NSWSC 822
- Alstom Ltd v Yokogawa Australia Pty Ltd (No 9) [2012] SASC 163
- Andrews v Australian and New Zealand Banking Group Ltd [2012] FCA 59
- Australasian Performing Right Association Ltd v Metro on George Pty Ltd [2004] FCA 1371; (2004) 64 IPR 57
- Australian Equity Investors, An Arizona Ltd Partnership v Colliers International (NSW) Pty Ltd (No 4) [2011] FCA 442
- Baulderstone Hornibrook Pty Ltd v Qantas Airways Ltd [2003] FCA 325
- Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
- Chen v Chan [2009] VSCA 233
- Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423
- Cretazzo v Lombardi (1975) 13 SASR 4
- Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
- Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
- Floruit Holdings Pty Ltd v Sebastian - Builders & Developers Pty Ltd [2009] NSWCA 411
- Foster’s Australia Ltd v Cash’s (Australia) Pty Ltd [2013] FCA 730
- Handberg v Chacmol Holdings Pty Ltd (No 2) [2005] FCA 680
- Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5; (2010) 182 FCR 84
- Hughes v Western Australia Cricket Association (Inc) (1986) 8 ATPR 40-748
- Loiero (aka Lero) v Adel Sportswear Pty Ltd (No 2) [2010] NSWSC 1208
- Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15
- Nokia Corporation v Liu [2009] FCAFC 138; (2009) 179 FCR 422
- Oschlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
- Ruddock v Vardalis (No 2) [2001] FCA 1865; (2001) 115 FCR 229
- Short v Crawley (No 40) [2008] NSWSC…

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: [2015] NSWSC 10
Decision Date: 23 January 2015

CaseChat Overview and Summary

The matter between JR Consulting and Drafting Pty Ltd and Cummings was heard in the court, which involved a dispute centred around the issue of costs, particularly in relation to a principal judgment that had determined a separate question of liability. Cummings had initially sought to have the issue of costs regarding the separate question of liability deferred until the determination of the quantum of any damages. The central legal issue that the court had to decide was whether there was any justification to depart from the general rule that costs follow the event, especially in cases where the outcome of the proceedings was mixed.

In considering the matter, the court acknowledged the general principle that costs typically follow the event, meaning that the losing party usually pays the costs of the winning party. However, the court also recognised that there may be exceptional circumstances where it would be appropriate to depart from this rule, particularly in cases with a mixed outcome. The court evaluated whether such circumstances existed in this case, focusing on the appropriateness of apportionment of costs. The court determined that there was no compelling reason to deviate from the established rule in this instance, and thus, the general principle that costs follow the event remained applicable.

As a result of the court's reasoning, the decision was made to uphold the general rule regarding the allocation of costs. The court found that there was no sufficient justification to defer the issue of costs related to the separate question of liability until the determination of the quantum of damages. Consequently, the court ruled that the costs associated with the separate question of liability should be determined in accordance with the prevailing party's position, in line with the general principle that costs follow the event. No specific orders were made regarding the apportionment of costs, as the decision focused primarily on the application of the general rule.

Orders