Kosho Pty Ltd and Anor v Trilogy Funds Management Ltd, Trilogy Funds Management Ltd and Ors v Fujino (No 2)

In Kosho Pty Ltd and Anor v Trilogy Funds Management Ltd, Trilogy Funds Management Ltd and Ors v Fujino (No 2), the dispute involved claims of breach of contract and fiduciary duty between the parties. The case was heard by the Supreme Court of New South Wales. The plaintiffs sought damages for breaches of contract and fiduciary duty, while the defendants denied any liability. The primary issue the court had to decide was whether the plaintiffs were entitled to costs under the general rule that costs follow the event, given that they were successful in proving one part of their liability case but failed to prove the associated loss.

The court examined the plaintiffs' claim for breach of the implied term of the contract, which was successful, but noted that the plaintiffs were only awarded nominal damages due to their inability to prove actual loss. The court considered whether it should depart from the general principle that costs follow the event, which typically means that the losing party pays the costs of the winning party. The court weighed the equities of the case, taking into account the partial success of the plaintiffs and the lack of any significant loss proved.

After careful consideration, the court determined that while the plaintiffs succeeded in proving part of their case, their failure to demonstrate actual loss warranted a departure from the strict application of the general rule. The court ordered that the plaintiffs pay a proportion of the defendants' costs, reflecting their partial success. This decision balanced the principle of costs following the event with the need to consider the overall outcome and the nature of the claims made by the parties.

The final orders included a judgment in favour of the plaintiffs for $10 in damages for breach of contract, dismissal of the plaintiffs’ other claims, and an order for the plaintiffs to pay a specified percentage of the defendants' costs.