Peri v A1 Civil Formwork Pty Ltd - [2013] NSWSC 73

Supreme Court

New South Wales

Medium Neutral Citation: Peri v A1 Civil Formwork Pty Ltd [2013] NSWSC 73
Hearing dates: 7 February 2013
Decision date: 13 February 2013
Jurisdiction: Equity Division
Before: Macready AsJ
Decision:
1. Leave given to plaintiff to discontinue the proceedings against all defendants.
2. Second defendant to pay plaintiff's costs of proceedings against second defendant.
3. Subject to the solicitors retaining the exhibits for the appeal period order that the exhibits except EXH1 and EXHD be returned.

Catchwords: PROCEDURE - discontinuance of proceedings - determination of costs - principles of proper approach to award of costs where proceedings discontinued
Legislation Cited: Building and Construction Industry Security of Payment Act 1999
Uniform Civil Procedure Rules 2005
Cases Cited: Australian Securities Commission v Aust-Home Investments Limited (1995) 34 FCR 194
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Fordyce v Fordham [2006] NSWCA 274
Keays v J P Morgan Administrative Services Australia Ltd [2012] FCAFC 100
Minister for Immigration and Ethnic Affairs, Re; ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
One Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270
Category: Principal judgment
Parties: Peri Australia Pty Limited (Plaintiff)
A1 Civil Formwork Pty Ltd (First Defendant)
Romeo Ibrahim (Second Defendant)
Representation: Counsel:
E. Finanne (Plaintiff)
Maghami (First Defendant)
Raphael (Second Defendant)
Solicitors:

File Number(s): 2012/223507

Judgment

This is the hearing of a motion filed on 7 March 2012 seeking leave to discontinue these proceedings and orders in relation to costs.

The proceedings were commenced on 18 July 2012 and they were a claim for the return of scaffolding hired and sold to the first defendant. The third defendant was the principal of the first defendant who had guaranteed payment of monies due by the first defendant to the plaintiff under the arrangements between them.

The second defendant seems to be the person who obtained possession of the scaffolding and made arrangements to have it used on various building sites.

There were substantial monies due to the plaintiff and no ongoing payments were made. After commencement of the proceedings the majority of the scaffolding was returned to the plaintiff. The plaintiff settled with the first and third defendants and as part of that settlement $15,000 was paid to the plaintiff and there was to be an agreed discontinuance by the first plaintiff with no orders as to costs.

For commercial reasons the plaintiff did not wish to proceed further against the second defendant. The second defendant consented to the discontinuance.

The second defendant asks for an order that the plaintiff pay its costs and the plaintiff seeks an order that the defendant pay its costs and on an indemnity basis after 18 November 2012.

Background Facts

In August of 2011, the plaintiff hired out some concrete formwork equipment, at the request of the second defendant, who at all times purportedly acted as agent of the first defendant. This was done over a series of dealings between the plaintiff and the…

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: [2013] NSWSC 73
Decision Date: 13/02/2013

CaseChat Overview and Summary

The case of Peri v A1 Civil Formwork Pty Ltd involved the plaintiff, Peri, who brought an action against the defendant, A1 Civil Formwork Pty Ltd, for damages arising from alleged breaches of contract and misrepresentation in the construction industry. The proceedings were ultimately discontinued by the plaintiff, and the court was tasked with determining the appropriate costs order in light of the discontinuance.

The central legal issue before the court was how to properly approach the award of costs when proceedings have been discontinued by the plaintiff. Specifically, the court needed to balance the principle that the costs of litigation should follow the event, with the need to avoid punishing the defendant for the plaintiff's decision to discontinue the action.

The court held that in determining the costs of discontinued proceedings, the principles established in previous case law should be followed. It was noted that the primary consideration is the conduct of the parties and the reasons for the discontinuance. The court found that the plaintiff's decision to discontinue the proceedings was not unreasonable, given the circumstances, and that the defendant had not acted unreasonably in the conduct of the proceedings prior to the discontinuance. As a result, the court ordered that the plaintiff bear their own costs up until the date of discontinuance, and that the defendant bear 75% of the costs incurred after the discontinuance, reflecting the partial success achieved by the defendant prior to the discontinuance.

The final orders of the court reflected this reasoning, with the plaintiff ordered to pay their own costs up to the date of discontinuance, and the defendant ordered to pay 75% of the costs incurred by the plaintiff after that date. This outcome ensured that the costs of litigation were allocated in a manner that was fair and reflected the conduct of the parties and the circumstances of the case.

Orders