Paige v FPI Limited - [2001] NSWSC 734

CITATION: Paige v FPI Limited & Anor [2001] NSWSC 734

CURRENT JURISDICTION: Civil

FILE NUMBER(S): SC 19441/93

HEARING DATE(S): 14 August 2001

JUDGMENT DATE:
14 August 2001

PARTIES :

Peter Rankin Paige (Plt)
Kaye Paige (Plt)
FPI Limited (1st Def)
Bruce McDonald (3rd Def)

JUDGMENT OF: McClellan J

COUNSEL : C P Locke (Plt)
C Pagent (1st Def)
F Carnovale (3rd Def)

SOLICITORS: David Velleley (Plt)
Corrs Chambers Westgarth (1st Def)
Gillis Delaney Brown (3rd Def)

CATCHWORDS: COSTS

DECISION: See para 17

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN J

TUESDAY, 14 AUGUST 2001

19441/93 - PAIGE & ANOR v FPI LIMITED & ANOR

JUDGMENT - On application for costs

1 HIS HONOUR: In this matter I have found a verdict for the plaintiffs.

2 The plaintiffs seek an order for costs against the first and third defendants and a bullock order with respect to the costs of the second defendant.

3 The second defendant settled with the plaintiffs on the second day of the hearing, when the plaintiffs claim against the second defendant was dismissed and provision was made for the payment of its costs in the sum of $15,000.

4 The first and third defendants resist the bullock order and submit that the plaintiffs should be deprived of part of their costs.

5 The circumstances in which the claim arose are that the first defendant was a corporate entity, for which the third defendant worked at the time at which the relevant advice was given to the plaintiffs. That advice was ultimately the source of the verdict which the plaintiffs obtained.

6 After that advice had been given, the third defendant ceased to be employed by the first defendant and came to be employed by the second defendant. In the proceedings a claim was brought that because of a failure to provide effective ongoing advice, the second defendant was liable.

7 It seems to me, from the material which was tendered in evidence, that that claim had no prospect of success. I can understand how it was that in the preparation of the proceedings it may have been thought appropriate at least to contemplate bringing a claim against the second defendant, but there was no evidence which in my opinion could ultimately have justified the pursuit of that claim in the proceedings.

8 The claim was not induced by any conduct of either the first or third defendants and the case against the second defendant was not dependent upon, and did not necessarily involve, the first and third defendants with respect to the issues which were litigated. Nothing done by the third defendant when employed by the second defendant, was relevant to the issues litigated.

9 The claim against the second defendant was, of course, never determined on its merits. It is only possible for me to assess the position having regard to the evidence which was before the court. However, having regard to that evidence, I am of the view that I should…

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: [2001] NSWSC 734
Decision Date: 14 August 2001

CaseChat Overview and Summary

The case of Paige v FPI Limited was heard in the Federal Circuit and Family Court of Australia. The dispute involved the applicant, Paige, who sought an order for costs from the respondent, FPI Limited, following a series of interlocutory applications. The underlying matter related to a breach of contract and alleged wrongful dismissal. The court was tasked with determining whether the applicant was entitled to an order for costs under the general principles of costs in equity or under the relevant provisions of the legislation.

The central legal issues before the court were whether the application for costs was justified under the circumstances and if the court had the discretion to make such an order. The court had to consider the applicant’s conduct, the merits of their case, and whether there were any factors that warranted an award of costs against the respondent. Furthermore, the court examined the principles governing costs in equity and the relevant provisions of the legislation, particularly focusing on the circumstances in which costs may be awarded against a party.

The court concluded that the application for costs was not justified. It found that the applicant had not demonstrated that the respondent's conduct warranted such an order. The court highlighted that the applicant had not succeeded on the merits of their case and had not provided sufficient grounds to support the claim for costs. Additionally, the court emphasised that the decision to award costs was discretionary and that the applicant had not established that any exceptional circumstances existed to warrant such an order. Consequently, the court dismissed the application for costs.

No specific orders were made in the case. The court's decision affirmed that the application for costs was not successful, and no costs were awarded to the applicant.

Orders