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Pirrottina v Pirrottina (No 2)

Pirrottina v Pirrottina (No 2)

Case [2024] NSWSC 1053 9 September 2024

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Pirrottina v Pirrottina (No 2) [2024] NSWSC 1053
Hearing dates: On the papers
Date of orders: 9 September 2024
Decision date: 09 September 2024
Jurisdiction: Equity
Before: Rees J
Decision:
Indemnity costs ordered from Calderbank offer.

Catchwords:
NOTICE TO ADMIT FACTS – purpose – cost incentives – principles at [33]-[38] – not entitled to indemnity costs before date of notice – Kohari v NSW Trustee followed.
COSTS – dissolution of partnership – principles at [52].
CALDERBANK OFFERS – whether complexity of proceedings precluded acceptance of offer or indemnity costs for non-acceptance – principles at [55], [69]-[72] – multi-issue proceedings may require a complicated offer to resolve all aspects of the dispute – whether offeree achieved better outcome than offer – whether unreasonable to reject offer – complex inquiry – at the time of the offer, offeree did not even dispute offeror’s evidence on key issue on which other issues would likely turn – indemnity costs ordered.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), rr 17.3, 42.8

Cases Cited:
Alves v Patel [2005] NSWSC 841
Bryant v Hawkesbury Radio Communication Co-operative Society Ltd [2014] NSWSC
Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (No 2) [2010] NSWSC 490
CGU Insurance Ltd v Corrections Corp of Australia Staff Superannuation Ltd [2008] FCAFC 173
Curac v Morey-Hype [2006] NSWSC 1171
ET Petroleum Holdings Pty Ltd v Clarenden Pty Ltd (No 2) [2005] NSWSC 562
Evans Shire Council v Richardson (No 2) [2006] NSWCA 61
Kohari v NSW Trustee & Guardian (No 3) [2017] NSWSC 1431
Kvaerner Oil & Gas Australia Pty Ltd v Egis Consulting Australia Ltd [2003] NSWSC 75
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (No 2) [2002] NSWSC 72
Meadow Gem Pty Ltd v ANZ Executors and Trustees (Supreme Court (Vic), Byrne J, 11 June 1996, unrep)
Millane v Nationwide News Pty Ltd [2004] NSWSC 1023
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [19]
Owners Corporation Strata Plan 61288 v Brookfield Multiplex Ltd [2012] NSWSC 1586
Pirrottina v Pirrottina [2024] NSWSC 558
Radovanovic v Stekovic [2024] NSWCA 129
Re Heavy Plant Leasing Pty Ltd [2017] NSWSC 1835
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Category: Costs
Parties: Rocco Pirrottina (Plaintiff)
Saverio Pirrottina (Defendant)
Representation:
Counsel:
C Wood SC / J Hart (Plaintiff)
M Ashhurst SC / K Dyon (Defendant)
Solicitors:
Williams The Law Firm (Plaintiff)
Cara Marasco & Co (Defendant)

File Number(s): 2022/358515

JUDGMENT

HER HONOUR: I gave judgment in this matter on 14 May 2024 and directed the parties to bring in orders as to how they wished to proceed in respect of costs: Pirrottina v Pirrottina [2024] NSWSC 558. On 30 May 2024, I made orders, by consent, for the parties to file evidence and submissions. The parties have since served affidavits by their respective solicitors, Hien Duong on behalf of the plaintiff (Rocco) and…

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 Pirrottina v Pirrottina (No 2)

Details

AGLC: Pirrottina v Pirrottina (No 2) [2024] NSWSC 1053
Case: [2024] NSWSC 1053
Decision Date: 09 September 2024

CaseChat Overview and Summary

In Pirrottina v Pirrottina (No 2), the Federal Circuit and Family Court of Australia addressed a dispute arising from the dissolution of a partnership between two brothers, the Pirrottina brothers. The primary issue was the allocation of costs incurred during the dissolution process, including the resolution of various disputes related to the partnership's assets and liabilities. The court also had to consider whether the respondent was entitled to indemnity costs for rejecting a Calderbank offer made by the applicant.

The court examined the principles governing the notice to admit facts, particularly the cost incentives and the rationale behind denying indemnity costs before the notice was served. It applied the principles set out in Kohari v NSW Trustee, which dictated that indemnity costs could not be awarded before the notice to admit facts was issued. The court then moved on to discuss the principles of costs in partnership dissolution cases, emphasising the importance of a fair and equitable distribution of costs between the parties involved.

The court ruled that the complexity of the proceedings did not preclude the acceptance of the Calderbank offer or the award of indemnity costs for its rejection. It acknowledged that multi-issue proceedings might require a complicated offer to resolve all aspects of the dispute, and that the decision to reject an offer could be a complex inquiry. The court found that, at the time of the offer, the offeree did not dispute the offeror's evidence on a key issue on which other issues would likely turn. Consequently, the court held that the offeree had not achieved a better outcome than the offer, and it was unreasonable to reject the offer. The court ordered the respondent to pay indemnity costs to the applicant.

The court's final orders included the direction that the respondent pay the applicant's costs of the proceedings, including indemnity costs for the rejection of the Calderbank offer. The court's decision highlights the importance of considering cost incentives and the reasonableness of rejecting settlement offers in the context of partnership dissolution disputes.

Orders