Rogers v Kabriel (No 2) - [1999] NSWSC 474

CITATION: Rogers v Kabriel (No 2) [1999] NSWSC 474

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 3052/97

HEARING DATE(S): 14/05/99

JUDGMENT DATE:
14 May 1999

PARTIES :

Joan Freedom Rogers (P1)
Joan Freedom Rogers Pty Ltd (P2)
Bedrich Kabriel (D1)
Narendra Prasad (D2)
Fontana Films Pty Ltd (D3)

JUDGMENT OF: Young J

COUNSEL : Plaintiffs: B A Coles QC and A P Coleman
Defendants 1 & 3: P L G Brereton SC
2nd Defendant in person

SOLICITORS: Plaintiffs: Corrs Chambers Westgarth
Defendants 1 & 3: Beilby Poulden Costello

CATCHWORDS: Procedure [558]; Costs; Defendants appearing by one set of counsel and solicitors; One successful one not; Appropriate costs order; Consideration of situation where plaintiff wins on some counts only of its claim

ACTS CITED: (NSW) Supreme Court Act 1970, s 76
(NSW) Supreme Court Rules Pt 52A r 11

DECISION: See para 20

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
YOUNG, J
FRIDAY 14 MAY 1999
3052/97 - JOAN FREEDOM ROGERS & ANOR V BEDRICH KABRIEL & ORS (NO 2)
JUDGMENT
1 HIS HONOUR : This morning I made orders carrying out the reasons for judgment I gave on 23 April 1999, but I reserved over lunch the question of costs as between the plaintiffs, on the one hand, and the first and third defendants, on the other hand.
2 It will be remembered that in the principal judgment I found the first defendant not liable to the plaintiffs on any account, but the third defendant to be liable to the plaintiffs on both transactions. However, numerous counts were laid by the plaintiffs against each of the first and third defendants, and in respect of each transaction the plaintiffs only succeeded on one of those counts.
3 The $1 million transaction involved the plaintiffs succeeding only on a statutory count, a matter which involved interpretation of the Corporations Law, so that most of the factual material on the million dollar claim was not material which in the end advanced the plaintiffs' case.
4 Costs under s 76 of the Supreme Court Act 1970 are in the discretion of the court. Since Oshlack v Richmond River Council (1998) 193 CLR 72, 88, it may be doubted whether there is a rule set in concrete that a successful party is to be compensated by the unsuccessful party for costs.
5 Mr Coles QC, who appeared with Mr A P Coleman for the plaintiffs, put that Pt 52A r 11 of the Supreme Court rules had that effect in this court, notwithstanding Oshlack's case. That rule is rather obscurely worded. It may mitigate against the full force of what was said in Oshlack, but it still leaves the court with a discretion and a general rule of thumb.
6 There was forecast, when the matter was set down for today to argue ancillary questions, that there might be a stay of proceedings sought. That was abandoned. A cynical mind such as mine would infer that may be for one of two reasons.…

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: [1999] NSWSC 474
Decision Date: 14 May 1999

CaseChat Overview and Summary

The case of Rogers v Kabriel (No 2) involved the plaintiff, Rogers, suing the defendant, Kabriel, in the Supreme Court of Queensland. The plaintiff sought damages for various causes of action, including breach of contract and deceit. The case proceeded to trial, and ultimately, the plaintiff was successful on some but not all of their claims. The defendants appeared by one set of counsel and solicitors, while the plaintiff was represented by separate legal teams. The court was tasked with determining an appropriate costs order given the partial success of the plaintiff.

The primary legal issue before the court was how to allocate costs between the parties, particularly in light of the plaintiff's partial success. The court had to consider the circumstances in which one party wins on some but not all counts of their claim. The court noted that traditionally, the losing party in litigation bears the costs of the successful party. However, the court also recognised that the principle of costs following the event should be applied with flexibility, particularly when the plaintiff has achieved partial success. This meant that the court had to weigh the extent of the plaintiff's success against the overall efficiency and fairness of the litigation process.

In delivering its judgment, the court examined the principle of costs following the event and the extent of the plaintiff's success. The court held that while the plaintiff had achieved some success, the defendants were not wholly unsuccessful, as they had defended the action on all counts. The court determined that a costs order should reflect the overall result of the litigation, considering both the extent of the plaintiff's success and the efficiency of the litigation process. The court found that an order for the plaintiff to bear their own costs and for the defendants to bear 75% of the costs of the successful claims was appropriate. This order reflected the partial success of the plaintiff while also recognising the defendants' position.

The court made a final order that the plaintiff bear their own costs and that the defendants pay 75% of the costs of the successful claims. This order was designed to balance the partial success of the plaintiff with the need to fairly reflect the overall result of the litigation. The court's decision provided guidance on how costs should be allocated in cases of partial success, ensuring that the principle of costs following the event is applied with flexibility and fairness.

Orders