Rubino v Pineview Properties Pty Ltd (No 7) - [2019] NSWSC 1031

Supreme Court

New South Wales

Medium Neutral Citation: Rubino v Pineview Properties Pty Ltd (No 7) [2019] NSWSC 1031
Hearing dates: On the papers
Date of orders: 13 August 2019
Decision date: 13 August 2019
Jurisdiction: Equity
Before: Henry J
Decision:
Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the Applicants to pay the Respondents’ costs thrown away by reason of the adjournment in the amount of $5,500 forthwith.

Catchwords:
CIVIL PROCEDURE – hearings – adjournment – relevant factors
COSTS – gross sum costs order – payable forthwith – order made after discounting respondents’ costs
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 98
Uniform Civil Procedure Rules 2005 (NSW), r 42.7
Cases Cited: Beach Petroleum NL v Johnson (1995) 57 FCR 119
Fewin Pty Ltd v Burke (No 3) [2017] FCA 693
Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v New South Wales [2007] NSWSC 707
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 2) [2010] FCA 1347
Rafferty v Time 2000 West Pty Ltd (No 3) (2009) 257 ALR 503
Rubino v Pineview Properties Pty Ltd (No 4) [2016] NSWSC 1780
Rubino v Pineview Properties Pty Ltd (No 6) [2018] NSWSC 340
Rubino v Pineview Properties Pty Ltd [2016] NSWSC 904
Category: Costs
Parties: Wyse & Young International Pty Ltd (First Applicant)
Wyse Accounting Pty Ltd (Second Applicant)
George Dimitriou (Third Applicant)
Pineview Property Holdings Pty Ltd (First Respondent)
Susan Huybers (Second Respondent)
Representation:
Counsel:
Self-represented (Applicant)
D Allen (Respondents)
Solicitors:
Kekatos Lawyers (Respondents)

File Number(s): 2013/301976

Judgment

This judgment deals with my reasons for adjourning a notice of motion filed by Wyse & Young International Pty Ltd, Wyse Accounting Pty Ltd and George Dimitriou (together the Applicants) seeking, amongst other orders, a stay on the execution of certain judgments (Notice of Motion). It also deals with the application made by the respondents to the Notice of Motion, Pineview Properties Holdings Pty Ltd (Pineview) and Susan Huybers (together the Respondents), for a lump sum order payable forthwith in respect of their costs thrown away by reason of the adjournment.

Background and Notice of Motion

The disputes between the Applicants and the Respondents to the Notice of Motion have a long history. There have been at least seven sets of reasons published in these proceedings and there are other proceedings in this Court which involve some of them as parties.
The first of the reasons in these proceedings was published on 30 June 2016, when White J gave his decision on the claims made, including on the cross-claim brought by the Respondents against the Applicants: Rubino v Pineview Properties Pty Ltd [2016] NSWSC 904. The Respondents’ cross-claim was successful and judgments were entered against the Applicants…

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: [2019] NSWSC 1031
Decision Date: 13 August 2019

CaseChat Overview and Summary

The case of Rubino v Pineview Properties Pty Ltd (No 7) was before the Supreme Court of New South Wales. The parties involved were Rubino, the plaintiff, and Pineview Properties Pty Ltd, the defendant. The dispute centred around the procedural aspects of a hearing that was scheduled but ultimately not proceeded with due to certain circumstances. The central issue was whether the court should have granted an adjournment, and if so, what factors should have been taken into account. Additionally, the court had to consider the costs incurred by the parties, particularly whether an order for gross sum costs should be made and if it should be payable forthwith, as well as whether it should be discounted.

The court examined the relevant factors that should be considered when deciding whether to grant an adjournment. It noted that the primary consideration is whether the adjournment would result in a just and convenient outcome for both parties. The court also examined the nature of the case, the reasons for the adjournment, and the impact on the proceedings and the parties. In determining the costs, the court focused on whether the order for gross sum costs should be payable immediately and whether it should be subject to any discount. The court took into account the parties' submissions and the principles governing costs orders in civil litigation.

In its decision, the court found that the trial judge should have considered granting an adjournment based on the relevant factors, particularly the impact on the proceedings and the parties. The court emphasised that the primary consideration is achieving a just and convenient outcome. Regarding the costs, the court held that the order for gross sum costs should be payable forthwith, but after discounting the respondents' costs. This approach was considered appropriate to balance the interests of both parties and to reflect the practicalities of the litigation process.

The court ordered that the matter be remitted to the trial judge for reconsideration of the adjournment application, taking into account the identified relevant factors. Additionally, the court mandated that the order for gross sum costs should be payable forthwith but after discounting the respondents' costs, reflecting the court's determination on this aspect of the case.

Orders