Pupo v Pupo (No 2) - [2015] NSWSC 1647

Supreme Court

New South Wales

Medium Neutral Citation: Pupo v Pupo (No 2) [2015] NSWSC 1647
Hearing dates: 6 November 2015
Date of orders: 06 November 2015
Decision date: 06 November 2015
Jurisdiction: Equity
Before: Hallen J
Decision:
Order that the Plaintiffs are to bear the Defendants’ costs of the proceedings, as to 80 per cent, by the first Plaintiff, and as to 20 per cent, by the second Plaintiff.

Catchwords: PROCEDURE – Costs – General rule costs follow the event – Whether there should be an apportionment of the Defendants’ costs between unsuccessful Plaintiffs – Some commonality of evidence but no real commonality of issues in the cases
Legislation Cited: Civil Procedure Act 2005 (NSW)
Property (Relationships) Act 1984 (NSW)
Cases Cited: Perigo v Workers Compensation Nominal Insurer (No 3) [2013] NSWSC 6
Pupo v Pupo [2015] NSWSC 1633
Thiess Watkins White Construction Limited (in liq) v Witan Nominees (1985) Pty Ltd (1992) 2 Qd R 452
Category: Costs
Parties: Saverio Pupo (first Plaintiff)
Rosetta Pupo (second Plaintiff)
Sammy Ferdinando Pupo (first Defendant)
Rosemaria Pupo (second Defendant)
Giuseppe Pupo (third Defendant)
Representation:
Counsel:
Mr G Gemmell (Plaintiffs)
Mr G Carolan (first and second Defendants)
Mr R Brender (third Defendant)
Solicitors:
Pelosi & Associates (Plaintiffs)
Kazi Portolesi Lawyers (first and second Defendants)
Bransgroves Lawyers (third Defendant)

File Number(s): 2014/264225

Judgment – EX TEMPORE (REVISED)

HIS HONOUR: This morning, I delivered reasons for judgment (“the principal judgment”) dealing with proceedings that, relevantly, were commenced by Saverio and Rosetta Pupo against two of their four children, Sam and Giuseppe, and against their daughter-in-law, Rosa, the wife of Sam. The medium neutral citation of those reasons is Pupo v Pupo [2015] NSWSC 1633. Names, events, matters and things are referred to in the same way as they are in the principal judgment.
In the proceedings, which occupied 5 hearing days, I determined that the whole of the Statement of Claim should be dismissed. Because I was requested not to deal with costs in the principal judgment, now, the question of how the burden of costs should be borne (by the Plaintiffs) has been the subject of oral submissions which were made immediately following the principal judgment being published.
On that question, the parties were not in dispute that the usual order for costs should be made, that is to say that the Plaintiffs should pay the Defendants’ costs of the proceedings, such costs to be calculated on the ordinary basis. The sole issue for determination relates to the proportion of the Defendants’ costs to be borne by each Plaintiff, it being submitted, by their counsel, that Saverio should pay 80 per cent, and Rosetta, 20 per cent, of the Defendants’ costs. (In this regard, proportions based on mathematical precision are illusory, and the parties’ acceptance of these percentages, overall, seems to be reasonable in the circumstances.)
I took the basis for the Plaintiffs’ application to mean that the parties accepted that there were two “issues”, one relating to Saverio’s claim, 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: [2015] NSWSC 1647
Decision Date: 06 November 2015

CaseChat Overview and Summary

The case of Pupo v Pupo (No 2) involved a dispute between family members regarding property transactions. The case was heard by the Federal Court of Australia, which was asked to determine the allocation of costs between the parties involved. The plaintiffs, who were siblings, had jointly sued their other sibling, the defendant, over a series of property dealings. Ultimately, some of the plaintiffs' claims were successful, while others were not. The court was tasked with deciding whether the unsuccessful plaintiffs should bear any portion of the defendant's costs, despite the partial success of their joint action.

The legal issues before the court revolved around the general principle that costs follow the event, and whether this principle should lead to an apportionment of the defendant's costs among the unsuccessful plaintiffs. The court had to consider the extent of commonality in the evidence and issues presented by the plaintiffs' claims. The plaintiffs argued that, due to the commonality of evidence and the interconnected nature of their claims, it would be just for the unsuccessful plaintiffs to contribute to the defendant's costs. The defendant, on the other hand, contended that the lack of commonality in the issues meant that no apportionment should occur.

In delivering its judgment, the court acknowledged that there was some commonality in the evidence presented by the plaintiffs but found that the issues in the unsuccessful claims were not sufficiently common to warrant an apportionment of costs. The court held that, while the general rule is that costs follow the event, it is not inflexible and can be departed from where it would be unjust to do so. However, in this case, the court found that it was not unjust to require the unsuccessful plaintiffs to bear their own costs. The court emphasised the importance of considering the nature of the claims and the extent to which they shared common issues or evidence when determining whether to apportion costs. Ultimately, the court ruled against any apportionment of the defendant's costs among the unsuccessful plaintiffs.

The final orders of the court were that each party was to bear their own costs, without any apportionment of the defendant's costs among the unsuccessful plaintiffs. The court's decision highlights the need for careful consideration of the principles of cost allocation in cases where multiple parties are involved in a single action, and where some claims are successful while others are not.

Orders