Penhorwood v Rojone Pty Ltd (No 2)

[2009] NSWSC 709

CITATION:	Penhorwood v Rojone Pty Ltd (No 2) [2009] NSWSC 709
HEARING DATE(S):	On written submissions
JUDGMENT DATE :	28 July 2009
JUDGMENT OF:	Harrison J
DECISION:	Rojone Pty Ltd to pay the costs of Mr Penhorwood in this Court.
CATCHWORDS:	COSTS – appeal from Magistrate – matter remitted for determination – costs in this Court payable by defendant
CATEGORY:	Consequential orders
CASES CITED:	Penhorwood v Rojone Pty Ltd [2008] NSWSC 1274
PARTIES:	Sean Dean Penhorwood (Plaintiff) Rojone Pty Ltd (Defendant)
FILE NUMBER(S):	SC 13482 of 2008
COUNSEL:	M T Hutchings (Defendant)
SOLICITORS:	ERA Legal (Plaintiff) McIntosh McPhillamy & Co (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	6948/06
LOWER COURT JUDICIAL OFFICER :	Freund LCM
LOWER COURT DATE OF DECISION:	30 March 2009

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

28 July 2009

13482 of 2008 Simon Dean Penhorwood v Rojone Pty Ltd (No 2)

JUDGMENT

1 HIS HONOUR: I gave judgment in this matter on 28 November 2008: see Penhorwood v Rojone Pty Ltd [2008] NSWSC 1274. I set aside the decision of Magistrate Freund of 17 June 2008 and remitted the matter to her for determination in accordance with my decision. I indicated that I would hear the parties on the question of costs. On 12 December 2008 I heard argument on that issue, at which time I determined to postpone my decision on the question of costs until the outcome of her Honour's further deliberations was known.

2 Her Honour published her further reasons for her decision on 30 March 2009. She found a verdict for Rojone Pty Ltd for $33,942.52 plus interest and costs. That amount was $8,675.31 less than the verdict originally found in favour of the company by her Honour when the proceedings were first before her.

3 Each party provided written submissions on the question of the costs of the proceedings before me. On the one hand Mr Penhorwood was successful before me to the extent that I ordered that the proceedings be remitted to her Honour for determination on certain terms. He was also successful in the further hearing before her Honour to the extent that the verdict against him was reduced by the sum I have indicated, thereby arguably vindicating his pursuit of relief in this Court. In those circumstances Mr Penhorwood seeks an order for the costs of the proceedings before me.

4 On the other hand, Rojone Pty Ltd was successful to the extent that it again recovered a verdict against Mr Penhorwood, even if for a reduced sum, together with interest and costs and became entitled to the entry of judgment accordingly. Rojone Pty Ltd says that the proper order is that there should be no order for costs of the proceedings before me to the intent that the costs of each party in this Court will be borne by that party.

5 The question at issue is obviously limited to the costs of the proceedings before me. Rojone Pty Ltd contended that the merits were in effect evenly balanced, despite its loss in this Court, when regard is had to the final decision arrived at in the Court below. Mr Penhorwood submitted that costs were dealt with by her Honour in accordance with what is loosely referred to as the usual rule. The usual rule if applied in this Court would result in an order for costs in his favour and he submitted that there was no reason in this case to depart from that rule. On the contrary, he contended that there were persuasive reasons why it should be applied.

6 For example, in the judgment delivered by me on 28 November 2008 I said this at par [25]:

"[25] The issue in the present proceedings is not a sterile one. The plaintiff contends that the state of the accounts between Satrak Pty Ltd and the defendant if properly analysed would reveal a level of indebtedness that was less than the judgment sum found by her Honour in the court below. The plaintiff's complaint before me is said to have substance because her Honour did not otherwise reason to a point or in a way that led to a finding that Satrak Pty Ltd was indebted to the defendant quite apart from her conclusions about issue estoppel. In that sense the plaintiff complains that her Honour's decision fails properly or adequately to give or to contain reasons about why or how it is that Satrak Pty Ltd was indebted to the defendant in any way at all."

7 In the events that occurred her Honour's later decision was a vindication of Mr Penhorwood's contention to which that paragraph refers. The proceedings in this Court were not simply energised by a desire to propound a technical point devoid of any real or practical consequences for the parties. The outcome in this Court in favour of Mr Penhorwood led ultimately to a different result in the Court below. Even if it had not, the outcome in this Court led to the proceedings being dealt with in a way that recognised Mr Penhorwood's entitlement to a hearing conducted according to law.

8 Mr Penhorwood was successful in the proceedings before me and in my opinion he is entitled to his costs.

Orders

9 In my opinion the following orders should be made:

1. Rojone Pty Ltd should pay the costs of Mr Penhorwood in this Court.

2. Rojone Pty Ltd should have a certificate under the Suitors' Fund Act 1951 if otherwise entitled.

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