Russo v Resource Developments International Pty Ltd (No 2) - [2003] NSWSC 446

CITATION: Russo v Resource Developments International Pty Ltd (No 2) [2003] NSWSC 446

HEARING DATE(S): 09/05/03

JUDGMENT DATE:
26 May 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Plaintiff to pay the fifth defendant's costs.

CATCHWORDS: PROCEDURE [581]- Costs- General rule- When not followed- Disreputable conduct of party- Conduct not impinging on result- Effect on costs.

CASES CITED: Bostock v Ramsey Urban District Council [1900] 2 QB 616
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Dicks v Yates (1881) 18 Ch D 76
Donald Campbell & Co Ltd v Pollak [1927] AC 732
King & Co v Gillard & Co [1905] 2 Ch 7
MLC Insurance Ltd v FAI Traders Insurance Co Ltd (1994) 49 FCR 23
Ritter v Godfrey [1920] 2 KB 47
Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129

PARTIES :
Vincenzo Russo (P1)
Merkado Pty Limited (P2)
Resource Developments International Pty Limited (D1)
Premier Resources Limited (D2)
Hy-Tec Industries Pty Limited (D3)
Iyad Rafidi (D4)
Placido Costa (D5)

FILE NUMBER(S): SC 1947/02

COUNSEL: F G Lever SC (P)
R Seton SC (D5)

SOLICITORS: Bartier Perry (P)
PricewaterhouseCoopers Legal (D5)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 26 May 2003

1947/02 – RUSSO v RESOURCE DEVELOPMENTS INTERNATIONAL PTY LTD (NO 2)

JUDGMENT

1 HIS HONOUR: This judgment concerns the question of costs between the plaintiff and the fifth defendant, Mr Placido (Pat) Costa.

2 I gave judgment on 2 April 2003 [2003] NSWSC 239. The case had, together with an associated matter, involved 9 days hearing. The plaintiff made a number of claims against the defendants. He was successful on only one of those claims and that claim was successful only against the first and fourth defendants.

3 The prayers in the statement of claim show that the relief sought against the fifth defendant was a declaration that he was knowingly concerned in breach of the Trade Practices Act or Fair Trading Act because of the conduct of the other defendants, and for consequential monetary orders.

4 The fifth defendant was not sued as a solicitor. In fact, he had drawn up some documents which were relied on by the plaintiff in his case, but there was no defective drafting of those documents, and indeed, their form actually assisted the plaintiff in his success against other defendants.

5 The plaintiff wholly failed on his Trade Practices claim and accordingly wholly failed against the fifth defendant.

6 Ordinarily, this would be enough for the fifth defendant to obtain an order for his costs against the plaintiff without question.

7 The problem that I have felt and why I have reserved my decision on this matter is that in paras 77 and following of my earlier judgment I found that I could not believe the evidence of the fifth defendant and the evidence of the fourth defendant, Mr Rafidi that they had no reference to each other's affidavits…

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.

Continue reading Russo v Resource Developments International Pty Ltd (No 2)

Details

AGLC: Russo v Resource Developments International Pty Ltd (No 2) [2003] NSWSC 446
Case: [2003] NSWSC 446
Decision Date: 26 May 2003

CaseChat Overview and Summary

Russo commenced proceedings against Resource Developments International Pty Ltd seeking damages for breach of contract. The dispute was heard in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the conduct of the plaintiff, which did not affect the outcome of the case but was considered disreputable, should impact the costs awarded. Specifically, the court had to determine whether such conduct could justify deviating from the general rule of costs following.

The court considered that while the general rule is that costs should follow the event, there are circumstances in which this rule may be departed from. In this case, the court held that disreputable conduct of a party, even if it did not affect the result of the case, could be a factor in determining costs. The court emphasised that the primary consideration is the conduct of the parties and its impact on the proceedings, rather than merely the outcome of the case. The court found that Russo's conduct was disreputable and warranted a costs penalty.

Accordingly, the court ordered that Russo pay Resource Developments International Pty Ltd's costs of the proceedings, reflecting the disreputable conduct. The order recognised the importance of maintaining high standards of conduct in litigation and the court's ability to impose costs penalties where appropriate, even in the absence of an impact on the case's outcome.

Orders