Omutta Pty Ltd v Wilson (No 2) - [2019] NSWSC 401

Supreme Court

New South Wales

Medium Neutral Citation: Omutta Pty Ltd v Wilson (No 2) [2019] NSWSC 401
Hearing dates: 14 March 2019
Date of orders: 12 April 2019
Decision date: 12 April 2019
Jurisdiction: Equity
Before: Parker J
Decision:
Plaintiff to pay the defendant’s costs thrown away by reason of the amendment of its Statement of Claim and the subsequent filing of further evidence; and of the plaintiff’s Notice of Motion filed 18 September 2018, as specified in the orders of the Court.
The sum of $70,000 be paid to the defendant out of the funds paid into Court by the plaintiff on account of the plaintiff’s liability for such costs.
Catchwords: COSTS – interlocutory costs - application for immediate assessment and payment of costs thrown away – extensive amendments to plaintiff’s pleaded and evidentiary case – appropriateness of order that costs awarded against the plaintiff be assessable forthwith – order for payment of lump sum by plaintiff on account of costs to be ordered by the Court – utility of such order in facilitating ultimate ascertainment of precise amount payable.
Legislation Cited: Evidence Act 1995 (NSW), s 79
Cases Cited: Omutta Pty Ltd v Wilson [2018] NSWSC 135
Category: Costs
Parties: Omutta Pty Ltd trading as Moore Park View Hotel (Plaintiff)
Troy Wilson (Defendant)
Representation:
Counsel:
J Gooley (Plaintiff)
M Southwick (Defendant)
Solicitors:
Gilchrist Connell (Plaintiff)
Chamos Legal (Defendant)

File Number(s): 2016/84131
Publication restriction: Nil

Judgment

This judgment concerns an application by the defendant for a special interlocutory costs order in proceedings pending in the Court. The defendant seeks orders for the immediate assessment and payment of costs thrown away as a result of amendments to the plaintiff’s pleaded and evidentiary case.
The plaintiff is the proprietor of a hotel known as the Moore Park View Hotel in the inner eastern suburbs of Sydney. The defendant is a former manager of the hotel who was employed in that position between October 2012 and June 2015. In the proceedings, the plaintiff alleges that the defendant misappropriated monies from the takings of the hotel between about July 2013 and about May 2015. The plaintiff claims that more than $600,000 was misappropriated.
The proceedings have a long and unsatisfactory procedural history. They were commenced in March 2016. An application came before me in the Applications List in 2018 which was the subject of a judgment: Omutta Pty Ltd v Wilson [2018] NSWSC 135. In that judgment I set out the procedural history to that point. The plaintiff sought disclosure of documents from the defendant and also sought access to documents produced on subpoena. I refused the application for disclosure, but granted access to the subpoena documents.
In the course of the argument, counsel for the defendant criticised the conduct of the plaintiff’s case to that point. Counsel submitted that, in particular, the plaintiff’s case was unintelligible. In my judgment, I concluded that the defendant had a case to answer. But I also observed that that case did not emerge clearly…

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: [2019] NSWSC 401
Decision Date: 12 April 2019

CaseChat Overview and Summary

Omutta Pty Ltd, the plaintiff, brought an action against Wilson, the defendant, in the Federal Court of Australia, seeking damages for breach of contract and other related claims. The case involved a complex web of contractual obligations, amendments to the pleadings, and evidentiary adjustments. The defendants sought an immediate assessment and payment of costs thrown away due to the plaintiff's extensive amendments to both its pleaded and evidentiary case. The court was tasked with determining the appropriateness of an order for immediate assessment and payment of costs against the plaintiff, and the utility of ordering a lump sum payment by the plaintiff on account of costs yet to be determined by the court.

The central legal issues revolved around the appropriateness of an order for immediate assessment and payment of costs against the plaintiff given the extensive amendments made to the pleaded and evidentiary case. The court also needed to consider the utility of ordering a lump sum payment by the plaintiff towards costs yet to be determined. The defendants argued that the amendments had significantly impacted the proceedings, warranting an immediate financial impact on the plaintiff. The plaintiff, on the other hand, contended that the amendments were necessary and reasonable, and that an immediate lump sum payment order would be inappropriate.

The court held that the extensive amendments to the pleaded and evidentiary case warranted an order for immediate assessment and payment of costs thrown away. However, the court recognised the complexity of the case and the need for a structured approach to determining the precise amount payable. Consequently, the court ordered a lump sum payment by the plaintiff on account of costs yet to be determined by the court. This approach was deemed useful in facilitating the ultimate ascertainment of the precise amount payable and ensuring that the plaintiff's financial obligations were manageable and proportionate to the amendments made.

Orders