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Russo v Russo (No. 2)

Russo v Russo (No. 2)

Case [2015] NSWSC 449 20 April 2015

Costs

Declaratory Relief

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Russo & Ors v Russo & Ors (No. 2) [2015] NSWSC 449
Hearing dates: 17 February 2015 and 25 March 2015
Date of orders: 20 April 2015
Decision date: 20 April 2015
Jurisdiction: Common Law
Before: Slattery J
Decision:
See paragraph [111].

Catchwords:
COSTS – whether costs should be reserved until account in common form completed – whether plaintiffs should pay costs thrown away by vacation of hearing date – whether Bullock or Sanderson order should be made against unsuccessful defendants in relation to successful defendant – whether relief should be granted against second defendant – whether costs should be awarded against second defendant – whether costs should be awarded against unsuccessful third plaintiff
CIVIL PROCEDURE – determination of further factual issues reserved in principal judgment – whether plaintiffs entitled to declaratory relief.
APPREHENDED BIAS – where final findings of credit made against witnesses in determining that joint venture existed – whether apprehended bias due to pre-judgment should prevent same judicial officer from hearing the taking of joint venturers’ accounts.
Legislation Cited: Civil Procedure Act 2005, s 56
Uniform Civil Procedure Rules 2005, rr 6.21, 20.15, 42.19
Cases Cited:
COSTS – whether costs should be reserved until account in common form completed – whether plaintiffs should pay costs thrown away by vacation of hearing date – whether Bullock or Sanderson order should be made against unsuccessful defendants in relation to successful defendant – whether relief should be granted against second defendant – whether costs should be awarded against second defendant – whether costs should be awarded against unsuccessful third plaintiff
CIVIL PROCEDURE – determination of further factual issues reserved in principal judgment – whether plaintiffs entitled to declaratory relief.
APPREHENDED BIAS – where final findings of credit made against witnesses in determining that joint venture existed – whether apprehended bias due to pre-judgment should prevent same judicial officer from hearing the taking of joint venturers’ accounts.
Category: Costs
Parties: First plaintiff: Angelo Phillip Russo
Second plaintiff: Rosemary Russo
Third plaintiff: Anros Consulting Pty Ltd
First defendant: Joseph John Russo
Second defendant: Suzanne Russo
Third defendant: John Russo
Representation:
Counsel: Plaintiffs: M.A. Ashhurst SC; L. Corbett
First to Third Defendants: P.W. Bates
Fourth Defendant: E. Finnane
Solicitors: Plaintiffs: David Matthew Farrar, Farrar Lawyers
First to Third Defendants: Anthony Steven Margiotta, Margiottta Solicitors & Attorneys
Fourth Defendant: William Henry Parsons, W.H. Parsons & Associates

File Number(s): 2011/280915
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. In the principal judgment the Court found that a joint venture had been made between several natural persons, not their companies, and foreshadowed that the defendants would be required to provide to the plaintiffs accounts in common form for three joint venture development projects, the Parramatta, the Killarney Street and the Esther Road Projects: Russo v Russo [2015] NSWSC 17.
The Court dismissed defences that accounts had already been provided; that the expiry of limitation periods precluded the grant of relief;…

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 Russo (No. 2)

Details

AGLC: Russo v Russo (No. 2) [2015] NSWSC 449
Case: [2015] NSWSC 449
Decision Date: 20 April 2015

CaseChat Overview and Summary

The case of Russo v Russo (No. 2) was heard in the Supreme Court of New South Wales. The dispute involved the resolution of accounts between the parties, specifically regarding a joint venture established between the parties. The court was required to determine several legal issues, including whether costs should be reserved until the accounts were completed in common form, whether the plaintiffs should bear the costs that were rendered ineffective due to the cancellation of the hearing date, and whether specific orders should be made against the unsuccessful defendants in relation to the successful defendant. Additionally, the court had to decide whether relief should be granted against the second defendant, whether costs should be awarded against the second defendant, and whether costs should be awarded against the unsuccessful third plaintiff.

The court considered the issue of whether the same judicial officer who had made final findings of credit against the witnesses should hear the taking of the joint venturers' accounts. The court also examined the question of whether the plaintiffs were entitled to declaratory relief. The reasoning of the court involved a thorough analysis of the evidence presented and the principles of civil procedure. The court held that the same judicial officer could hear the taking of the joint venturers' accounts, as there was no apprehended bias due to the pre-judgment. The court further determined that the plaintiffs were entitled to declaratory relief.

The court's outcome was that costs should be reserved until the accounts were completed in common form. The plaintiffs were not required to pay the costs that were wasted due to the cancellation of the hearing date. The court also made specific orders against the unsuccessful defendants in relation to the successful defendant, and granted relief against the second defendant. Costs were awarded against the second defendant but not against the unsuccessful third plaintiff.

Orders