Pacific General Securities Ltd & Anor v Soliman & Sons Pty Ltd & Ors (Costs) [2006] NSWSC 724
HEARING DATE(S):
17 February 2005 (written submissions)
JUDGMENT DATE :
19 July 2006
JURISDICTION:
Equity Division
JUDGMENT OF:
Brereton J
DECISION:
Extension of time to apply to vary costs order refused.
CATCHWORDS:
COSTS – Where plaintiff succeeds in gaining relief sought but fails on five of six grounds argued – where the five grounds on which the plaintiff failed did not have reasonable prospects of success – where provisional costs order made that each party bear its own costs, reserving leave to apply for a different order – where plaintiff applies out of time for different costs order – where, if extension granted, leave would be required to proceed because defendant in administration – where application would in any event fail.
LEGISLATION CITED:
Corporations Act 2001 (Cth), s 440D(1)(b)
CASES CITED:
Cates v Glass [1920] NZLR 37 Pacific General Securities Limited v Soliman & Sons Pty Limited [2006] NSWSC 13 Waterman v Gerling Australia Insurance Co Ltd (Costs) [2005] NSWSC 1111
PARTIES:
Pacific General Securities Ltd (P1) Finmore Holdings P/L (P2) Soliman & Sons P/L (D1) Institute of Arbitrators & Mediators (D2) Richard Nixon (D3)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
BRERETON J
Wednesday, 19 July 2006
5734/05 Pacific General Securities Ltd & Anor v Soliman & Sons Pty Ltd & Ors
JUDGMENT
1 HIS HONOUR: On 31 January 2006 I delivered judgment and made orders declaring the determination of the third defendant adjudicator void, restraining the first defendant builder from requesting the second defendant nominating authority to provide an adjudication certificate, restraining the second defendant from providing an adjudication certificate, and making no order as to costs, to the intent that each party bear its own costs [Pacific General Securities Limited v Soliman & Sons Pty Limited [2006] NSWSC 13]. I explained my reasoning for (provisionally) making no order as to costs, as follows [at [100]]:
Although the plaintiff has succeeded, it failed on all but one of the grounds it advanced. Had it relied only on the ground on which it succeeded, the scope of the case and the evidence would have been very much reduced. While costs ordinarily follow the event, and I am conscious that it is exceptional for the Court to apportion costs having regard to the partial success of a party, it may do so where an issue is severable and distinct. In this case, the plaintiff succeeded on an issue which occupied little of the argument and would have required only the adjudication to be put into evidence. It failed on all others. Although I shall reserve leave to the parties to apply for a different costs order, prima facie the parties should be left to bear their own costs.
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.
Continue reading Pacific General Securities Ltd v Soliman & Sons Pty Ltd
Sign in free to access the full text
Details
AGLC
Pacific General Securities Ltd v Soliman & Sons Pty Ltd [2006] NSWSC 724
Case
[2006] NSWSC 724
Decision Date
CaseChat Overview and Summary
The plaintiff, Pacific General Securities Ltd, brought a case against the defendant, Soliman & Sons Pty Ltd, before a court in Australia. The plaintiff sought relief on six grounds, all of which related to a financial dispute. The court had to determine whether the plaintiff was entitled to the relief sought, and if so, which of the grounds were valid. The defendant argued that the plaintiff had not succeeded on five of the six grounds, and therefore, should not be awarded costs.
The primary legal issue the court had to decide was whether the plaintiff, having succeeded in obtaining relief on one ground, was entitled to costs for the unsuccessful five grounds. The court had to consider whether the unsuccessful grounds had reasonable prospects of success and whether the plaintiff's application for costs was made out of time. The court also had to consider whether, if the extension was granted, leave would be required to proceed because the defendant was in administration.
The court found that the unsuccessful five grounds did not have reasonable prospects of success. The court also found that the plaintiff's application for costs was made out of time, and even if the extension was granted, the application would still fail because the defendant was in administration. The court therefore dismissed the plaintiff's application for costs. The court made a provisional costs order that each party bear its own costs, reserving leave to apply for a different order.