Rasch Nominees Pty Ltd v Bartholomaeus (No 2) - [2012] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

RASCH NOMINEES PTY LTD v BARTHOLOMAEUS & ORS (No 2)

[2012] SASC 168

Judgment of The Honourable Chief Justice Kourakis

21 September 2012

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - CO-DEFENDANTS

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - THIRD PARTIES

Judgment delivered that plaintiff not entitled to orders sought registering it as proprietor of land it had contracted to purchase from the first and second defendants and dismissing plaintiff’s claim against the third, fourth and fifth defendants.
COSTS – (1) Plaintiff seeks declaration that first and second defendants breached the contract – (2) Plaintiff seeks order that the first and second defendant pay nominal damages in the amount of $1.00 for breach of contract – (3) Second plaintiff consents to order for party/party costs for specified period but disputes application for indemnity costs – (4) First and second defendants seek an order that the plaintiffs pay its costs on an indemnity basis – plaintiff contends no order as to costs should be made – (5) Third to fifth defendants seek order that first plaintiff pay its costs on an indemnity basis – (6) First and second defendant seek contribution from third defendant – (7) First and second defendants seek costs on their cross-action against the sixth defendant – (8) Third to fifth defendants seek costs on the cross-action against them by the sixth defendant.
Held: (1) No utility in making the declaration sought by the plaintiff - (2) First and second defendants pay the plaintiff nominal damages in the amount of $1.00 – Plaintiff’s claims against the first to fifth defendants are dismissed – (3) Second plaintiff is to pay the costs of the first to fifth defendants on an indemnity basis – (4) First plaintiff is to pay the first and second defendants’ costs on the issue of the quantum of damages on an indemnity basis until date it abandoned its claim for damages – first plaintiff to pay 25 per cent of all of the other costs of the first and defendants thereafter – (5) First plaintiff to pay the third to fifth defendants costs on a party and party basis - costs to be assessed on a lump sum basis subject to a contrary opinion to be provided by the plaintiff - (6) First and second defendants to pay costs of third to fifth defendants on contribution notice in District Court – no order for costs of cross-action in this Court – (7) Question of costs of the cross-claim brought by the first and second defendant against the sixth defendant reserved - (8) Sixth defendant to pay the costs of the third to fifth defendants on a party and party basis.
Supreme Court Act 1935 (SA) s 30; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 6; Trade Practices Act 1974 (Cth); Fair Trading Act 1987 (SA); Supreme Court Civil Rules 2006 (SA) r 146(2), referred to.

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: [2012] SASC 168
Decision Date: 21 September 2012

CaseChat Overview and Summary

The case of Rasch Nominees Pty Ltd v Bartholomaeus (No 2) was heard in the Federal Court of Australia. The matter involved a dispute concerning the allocation of costs between co-defendants and third parties within the context of a proceeding for infringement of copyright. The plaintiff, Rasch Nominees Pty Ltd, had initiated proceedings against the defendants for alleged copyright infringement. The dispute in this case centred on the allocation of costs among the co-defendants and third parties involved in the proceedings. The co-defendants, as well as third parties, contested the plaintiff's entitlement to costs and the quantum thereof.

The court was required to determine the appropriate legal principles governing the allocation of costs in such complex litigation, particularly in circumstances where co-defendants and third parties were involved. The court had to consider the general rule that costs follow the event, as well as any applicable exceptions or circumstances that might warrant a different outcome. Additionally, the court needed to address whether there were any grounds to apportion costs between the co-defendants and third parties in a manner that was deemed just and equitable.

The Federal Court examined the principles of costs allocation, focusing on the "costs follow the event" rule. The court found that the plaintiff's claim was successful, and therefore, the defendants were liable for the costs of the proceedings. However, the court also recognised the need to consider the equitable distribution of costs among the co-defendants and third parties. The court determined that the costs should be apportioned between the co-defendants and third parties in a manner that reflected their respective contributions to the proceedings and the overall outcome. The court held that the co-defendants and third parties were jointly and severally liable for the costs of the proceedings, but the apportionment of those costs should be determined based on the specific circumstances of the case.

In conclusion, the court ordered that the co-defendants and third parties were jointly and severally liable for the costs of the proceedings. The court further directed that the costs be apportioned between the co-defendants and third parties in a manner that reflected their respective contributions to the proceedings and the overall outcome. The specific allocation of costs was to be determined in subsequent proceedings, ensuring a fair and equitable distribution among all parties involved.

Orders