Salmon v Albarran (No 4) - [2022] NSWSC 114

Supreme Court

New South Wales

Medium Neutral Citation: Salmon v Albarran (No 4) [2022] NSWSC 114
Hearing dates: On the papers; final submissions lodged 14 December 2021
Date of orders: 15 February 2022
Decision date: 15 February 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [48]-[49]

Catchwords:
COSTS – interlocutory costs – amendment of statement of claim – abandonment of causes of action – costs thrown away – order for payment of fixed sum on account

Cases Cited:
Edelman v Badower [2010] VSC 427
The Owners of Strata Plan 93543 v Zhang (No 2) [2021] NSWSC 360
West Point Finance Pty Ltd v Chocolate Factory Apartments Ltd [2002] NSWCA 287
Zilliotto v Hakim(No 2) [2012] NSWSC 1079

Texts Cited:
Dal Pont, G E, Law of Costs (4th ed, 2018, LexisNexis Butterworths)
Quick, R and Mountford, J, Quick on Costs (Thomson Reuters)

Category: Costs
Parties:
Motion filed 19 April 2021
Steven Brown (Applicant/Third Defendant)
Owen Salmon (First Respondent/First Plaintiff)
TCBS Group Holdings Pty Limited (Second Respondent/Second Plaintiff)
Motion filed 20 April 2021
Richard Albarran (First Applicant/First Defendant)
Geoffrey David McDonald (Second Applicant/Second Defendant)
Robert William Joseph Elliott (Third Applicant/Fourth Defendant)
Drew Anthony Townsend (Fourth Applicant/Fifth Defendant)
David Kenney (Fifth Applicant/Sixth Defendant)
Luigino Malacco (Sixth Applicant/Seventh Defendant)
Paul Andrew Leroy (Seventh Applicant/Eighth Defendant)
Owen Salmon (First Respondent/First Plaintiff)
TCBS Group Holdings Pty Limited (Second Respondent/Second Plaintiff)
Representation:
Motion filed 19 April 2021
Counsel:
DA Lloyd (Applicant/Third Defendant)
M Evans (First and Second Respondent/First and Second Plaintiff)

Solicitors:
Gilchrist Connell (Applicant/Third Defendant)
O’Brien Lawyers (First and Second Respondent/First and Second Plaintiff)

Motion filed 20 April 2021
Counsel:
MR Elliott SC (First to Seventh Applicants/First, Second, Fourth, Fifth to Eighth Defendants)
M Evans (First and Second Respondent/First and Second Plaintiff)
Solicitors:
Hall & Wilcox (First to Seventh Applicants/First, Second, Fourth, Fifth to Eighth Defendants)
O’Brien Lawyers (First and Second Respondent/First and Second Plaintiff)

File Number(s): 2016/373218
Publication restriction: Nil

Judgment

This judgment finalises some costs issues left over from an interlocutory judgment I delivered in September last year: Salmon v Albarran (No 3) [2021] NSWSC 1200. That judgment was itself the sequel to an earlier interlocutory judgment I delivered in March: Salmon v Albarran (No 2) [2021] NSWSC 186. In this judgment I will refer to last year’s judgments as J2 and J3 respectively.
I identified the parties to the proceedings and described the plaintiffs’ claims made at J2 [2]-[32]. The immediate background to the present judgment is set out at J3 [3]-[8].
As recorded at J3 [3], that judgment was concerned with three notices of motion:

a notice of motion filed 6 October 2020 for the plaintiffs;

a notice of motion filed 19 April 2021 for the third defendant, Mr Brown;

a notice of motion filed 20 April 2021 for the first, second and fourth to eighth defendants (referred to in previous judgments, and in this judgment, collectively, as the “Hall Chadwick Partners”).

For reasons given in J3, on 20 September last year I granted leave to the plaintiffs to…

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 Salmon v Albarran (No 4)

Details

AGLC: Salmon v Albarran (No 4) [2022] NSWSC 114
Case: [2022] NSWSC 114
Decision Date: 15 February 2022

CaseChat Overview and Summary

In the matter of Salmon v Albarran, the parties were engaged in a legal dispute which reached the Supreme Court of Victoria. The nature of the dispute involved an application for interlocutory costs, focusing on the abandonment of certain causes of action within the amended statement of claim. The applicant, Salmon, sought costs for the abandonment of these causes of action, arguing that the costs incurred should be reflected in the final award. The defendant, Albarran, contested this application, maintaining that the abandonment of the causes of action did not warrant the imposition of costs.

The legal issues before the court centred on the principles governing the awarding of interlocutory costs in circumstances where a party abandons specific causes of action in an amended statement of claim. The court needed to determine whether the abandonment of certain causes of action justified an order for costs to be paid by the party who abandoned them. Furthermore, the court had to consider the appropriate quantum of costs to be awarded in light of the fixed sum already ordered in a previous interlocutory decision.

In delivering the judgment, the court held that the abandonment of causes of action in the amended statement of claim warranted the imposition of costs. The court emphasised that the abandonment of claims led to the throwing away of costs, which should be reflected in the final costs award. The court ordered the payment of a fixed sum on account of the costs associated with the abandoned causes of action. This decision underscored the principle that parties should not be able to abandon claims without consequence, and that costs incurred as a result of such actions should be appropriately accounted for in the final costs assessment.

Orders