Robert Angius v John Angius

[2018] NSWSC 1897

Supreme Court

New South Wales

Medium Neutral Citation:	Robert Angius v John Angius & Anor [2018] NSWSC 1897
Hearing dates:	4 December 2018
Decision date:	04 December 2018
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	See para [6]
Category:	Costs
Parties:	Robert Angius (Plaintiff) John Angius (First Defendant) Angius Investments Pty Ltd (Second Defendant)
Representation:	Counsel: Ms V Culkoff (Plaintiff) S Brennan (Defendants)   Solicitors: Peter Varela Lawyers (Plaintiff) George Loupos & Associates Lawyers (Defendants)
File Number(s):	2017/213677

EX TEMPORE Judgment

1. I gave judgment in this matter on 23 November 2018. The plaintiff sought and succeeded ultimately in setting aside and indeed challenging the effectiveness, validity and enforceability of two mortgages. The plaintiff's case was put on a number of bases. I rejected some of those bases, but ultimately the Plaintiff succeeded on the case of estoppel which was always present but somewhat obfuscated by other arguments.

2. Many cases involve many issues and many cases involve alternative cases. It is often as a matter in exercising in any discretion on costs to try, if one is able to do so, to apportion time spent on particular issues when possible it may arguably produce a fairer result. In my view, this is not that kind of case. I do not think it is a simple matter for example of trying to work out the amount of time spent by Mr Brennan in cross-examination as directed to one issue as opposed to another. If I may say so, in a very professional and direct way, he did cross-examine Mr Robert Angius but he was, at each turn of his cross-examination, trying to suggest that Mr Angius' credit should not be accepted. I make no criticism of the way in which Mr Brennan approached that task, indeed, if I may say so, it was very effective because in the end he persuaded me that I could not, to a very large extent, rely upon Mr Robert Angius' credit. That said, I formed the view in the end that there was sufficient inducement and representations, accordingly by Mr John Angius such that in fairness as it were and in accordance with principle, Mr Robert Angius should succeed on his estoppel claim.

3. As I have said I do not think, however, it is appropriate to try to break up the issues and apportion time to one issue as opposed to another. Therefore, I think that Mr Robert Angius is certainly entitled to his costs, against whom is the next question. The two defendants were joined, not just for convenience but simply because Mr Robert Angius wanted to suggest, in both cases as he has done successfully, that neither mortgage should be enforced.

4. The corporate entity Angius Investments, has Mr John Angius as one director and his daughter Jenny as the other director. The shareholding is divided 50 per cent to Mr John Angius and 50 per cent to Mr Robert Angius as a result of his inheritance pursuant to his deceased mother's estate.

5. In awarding the costs, Mr Brennan on behalf of the defendants, submits that first by reason of the outcome or by reason of the issues upon which the plaintiff did not succeed he should only get 50 per cent of his costs. I am against him on that proposition for the reasons I outlined because I do not think they can be apportioned in that way.    Secondly, he submits that of that 50 per cent, 25 per cent should be awarded against Mr John Angius and the other 25 per cent against the corporate entity. Again, I am against Mr Brennan on that submission for the following reasons.

6. The Plaintiff, Mr Robert Angius, has succeeded. It would make a mockery of the outcome of this litigation if directly or indirectly he ended up having to be responsible for some of the costs incurred as a result of his success, but by reason of a shareholding he has inherited. So consequently, I think it is entirely illogical and indeed unfair if he were placed in a situation, either to be confronted with litigation against the corporate entity which is in receivership or bear a burden of costs where he succeeded.

7. Mr John Angius, it is clear beyond any doubt, was the moving party in relation to both mortgages. Although, the corporate mortgage was executed on behalf of Angius Investments, the corporate defendant, he nonetheless was the moving party. Indeed, he initiated the forensic strategy. In my view, he should bear the costs of this litigation as I think that would be the fair outcome. Therefore in my discretion the Plaintiff should be awarded his costs of the litigation and those costs should be borne by Mr John Angius.

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Decision last updated: 10 December 2018