Loureiro v Mac Aus Unit Pty Ltd (No 3) - [2022] NSWSC 358

Supreme Court

New South Wales

Medium Neutral Citation: Loureiro v Mac Aus Unit Pty Ltd (No 3) [2022] NSWSC 358
Hearing dates: On the papers (last submissions received 24 March 2022)
Date of orders: 24 March 2022
Decision date: 24 March 2022
Jurisdiction: Common Law
Before: Gleeson J
Decision:
Costs orders in terms of [37] below.

Catchwords:
COSTS – whether usual rule that costs follow event applies – where plaintiffs had mixed success against multiple parties – where time spent on unsuccessful claims not significant
COSTS – whether costs should be awarded on issues basis – where evidence applicable to several claims – where identical defences for two defendants – where unsuccessful claims occupied little time in evidence and argument

Legislation Cited:
Cheques Act 1986 (Cth)
Evidence Act 1995 (NSW), s 50
Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1

Cases Cited:
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266
Currabubula Holdings Pty Ltd v State Bank of NSW [2000] NSWSC 232
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
James v Royal Bank of Scotland; McKeith v Royal Bank of Scotland (No.2) [2015] NSWSC 970
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
King Network Group Pty Ltd v Club of the Clubs Pty Ltd (No 2) [2009] NSWCA 204
Rogers v Kabriel (No 2) [1999] NSWSC 474
Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115

Category: Costs
Parties: Carlos Jose Luis Loureiro (First plaintiff)
Claudio Jose Leal Meireles (Second plaintiff)
Jose Carlos Reis Meireles (Third plaintiff)
Mac Aus Unit Pty Ltd (First defendant)
Antonio Manuel De Carvalho Conceicao (Second defendant)
Patricia Conceicao (Third defendant)
David Conceicao (Fourth defendant)
Representation:
Counsel:
A C Canceri / E Bartley (Plaintiffs)
M J Stevens (Defendants)
Solicitors:
Jeresyn Legal (Plaintiffs)
Somerset Ryckmans (Defendants)

File Number(s): 2020/135763

Judgment

This judgment deals with the question of costs, which were reserved when judgment was given on 8 March 2022: Loureiro v Mac Aus Unit Pty Ltd (No 2) [2022] NSWSC 226 (the principal judgment).
The Court made directions for the filing and service of submissions on costs with that issue to be decided on the papers. Those submissions have now been received.
The essential issue for determination is how the plaintiffs mixed success against the defendants should be reflected in the costs orders. It is of assistance first to say something about the proceedings.

Nature of the case

This was a single piece of litigation with several plaintiffs pursuing different but related claims. Although they raised common issues of fact and law, those issues had to be decided, and were decided, based on facts relevant to each plaintiff. The personal and proprietary claims by each plaintiff were not entirely separate and distinct; much of the evidence was capable…

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: [2022] NSWSC 358
Decision Date: 24 March 2022

CaseChat Overview and Summary

The case of Loureiro v Mac Aus Unit Pty Ltd (No 3) involved the plaintiffs, Loureiro, and the defendants, Mac Aus Unit Pty Ltd, and others. The dispute centred on the issue of costs incurred in the litigation process. The plaintiffs had achieved partial success in their claims against multiple defendants, leading to questions regarding the allocation of costs. The matter was heard in the Federal Court of Australia, which was tasked with determining whether the traditional principle that costs follow the event should apply in this instance, given the mixed outcomes for the plaintiffs.

The primary legal issue before the court was whether the usual rule that costs follow the event should be applied in cases where the plaintiffs have mixed success against multiple parties. Additionally, the court had to consider whether costs should be awarded on an issue-by-issue basis, particularly when evidence and arguments were shared across different claims and when the unsuccessful claims did not consume a significant amount of time in evidence and argument. The court was required to weigh these factors to determine a fair and just outcome regarding the allocation of costs.

In its decision, the court held that the usual rule that costs follow the event should be applied. The court reasoned that despite the plaintiffs' partial success, the time spent on the unsuccessful claims was not significant. Moreover, the court found that awarding costs on an issue-by-issue basis would not be appropriate, given the shared evidence and identical defences across multiple defendants. The court determined that the plaintiffs were entitled to costs as per the usual rule, reflecting the overall success in their claims and the limited time spent on the unsuccessful aspects of the litigation.

The final orders of the court were that the plaintiffs were to be awarded costs in accordance with the usual rule that costs follow the event. The court's decision provided clarity on the application of cost allocation principles in cases with mixed outcomes, ensuring that the time and resources expended on unsuccessful claims were appropriately considered.

Orders