Lauvan Pty Limited v Bega (No 3) - [2018] NSWSC 423

Supreme Court

New South Wales

Medium Neutral Citation: Lauvan Pty Limited v Bega (No 3) [2018] NSWSC 423
Hearing dates: On the papers (last submissions 28 March 2018)
Decision date: 10 April 2018
Before: Gleeson JA
Decision:
(1)   Mr Ciappara pay the costs of the cross-defendants (Lauvan Pty Limited, Mittabell Pty Limited, Aidan Bega and AB Veritas Pty Ltd) to the third cross-claim.

(2)   Mrs Bega pay to Mr Ciappara the costs which Mr Ciappara is liable to pay pursuant to order (1) to the first and second cross-defendants (Lauvan Pty Ltd and Mittabell Pty Ltd) to the third cross-claim.
(3)   Mrs Bega pay to Mr Ciappara 30 percent of his own costs of the third cross-claim.
Catchwords: COSTS – costs of third cross-claim – where unnecessary to determine issues raised by third cross-claim given dismissal of second cross-claim – where third cross-claimant ordered to pay costs of third cross-claim – whether some further or other order should be made – whether unsuccessful second cross-claimant should bear costs liability of third cross-claimant – whether reasonable to bring the third cross-claim against all cross-defendants – whether claims of second cross-claimant the catalyst for the third cross-claim
Legislation Cited: Civil Liability Act 2002 (NSW), Pt 4
Civil Procedure Act 2005 (NSW), s 98(1)
Contracts Review Act 1980 (NSW)
District Court Rules 1973 (NSW), Pt 39A, r 9
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c)
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Furber v Stacey [2005] NSWCA 242
GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 201 ALR 55; [2003] FCA 688
Johnson v Ribbins [1977] 1 WLR 1458
Lauvan Pty Limited v Bega [2018] NSWSC 154
Lombard Insurance Co (Australia) Ltd v Pastro (1994) 175 LSJS 448
Category: Costs
Parties: Lauvan Pty Limited (First Plaintiff)
Mittabell Pty Limited (Second Plaintiff)
Helen Bega (First Defendant)
Aidan Bega (Second Defendant)
AB Veritas Pty Limited (Third Defendant)
Charles Ciappara (Second Cross-Defendant / Third Cross-Claimant)
Representation:
Counsel:
Mr G Sirtes SC / Ms A Avery-Williams (Plaintiffs)
Ms I King (First Defendant)
Mr A Ogborne (Second and Third Defendants)
Mr J Emmett (Second Cross-Defendant / Third Cross-Claimant)
Solicitors:
Woolf Associates (Plaintiffs)
Coyne Legal (First Defendant)
Aubrey F Crawley & Co (Second and Third Defendants)
K&L Gates (Second Cross-Defendant / Third Cross-Claimant)

File Number(s): 2015/362975

Judgment

GLEESON JA: These reasons deal with the costs orders to be made in relation to the third cross-claim following delivery of my reasons on 22 February 2018 deciding the principal dispute in favour of the plaintiffs, and dismissing each of the first, second and third cross-claims (the principal reasons). [1]
1. Lauvan Pty Limited v Bega [2018] NSWSC 154.
The parties were directed to provide submissions dealing with the costs of the third cross-claim. Submissions were lodged in accordance with the timetable specified, other than by Aidan Bega and AB Veritas who did not lodge any submissions. In these reasons, terms defined in the principal reasons are used in…

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 423
Decision Date: 10 April 2018

CaseChat Overview and Summary

Lauvan Pty Limited was the plaintiff in a proceeding brought in the Federal Court of Australia against Bega Cheese Limited and two other companies. The dispute concerned the validity of certain patent rights held by the plaintiff over a cheesemaking process. The plaintiff sought declarations regarding the validity and infringement of these patents and an account of profits. Bega Cheese Limited initiated a second cross-claim against the plaintiff and the other defendants, which was ultimately dismissed. The second cross-claimant also initiated a third cross-claim against the plaintiff and the other defendants, which was not pursued and subsequently ordered to pay costs. The plaintiff sought an order that the second cross-claimant bear the costs of the third cross-claim.

The court needed to determine whether it was appropriate to order the unsuccessful second cross-claimant to bear the costs of the third cross-claim. The court also considered whether it was reasonable for the third cross-claimant to bring the third cross-claim against all parties and whether the second cross-claimant's claims were the catalyst for the third cross-claim. The court examined the nature and purpose of the third cross-claim, the relationship between the second and third cross-claims, and the circumstances in which the third cross-claim was brought.

The court held that the second cross-claimant should bear the costs of the third cross-claim. It was determined that the third cross-claim was reasonably brought against all parties, and the second cross-claimant's claims were the catalyst for the third cross-claim. The court found that the third cross-claim was an integral part of the second cross-claimant's case, and it was reasonable for the second cross-claimant to bring the third cross-claim against all parties. The court considered it appropriate to make the order sought by the plaintiff. The second cross-claimant was ordered to pay the costs of the third cross-claim.

The court made an order that Bega Cheese Limited pay the costs of the third cross-claim within fourteen days of the judgment. The court also ordered that if the costs were not paid within the specified time, interest would accrue on the unpaid amount at the rate of seven per cent per annum. The order reflected the court's determination that it was appropriate for the second cross-claimant to bear the costs of the third cross-claim.

Orders