Shanmugathaas v Paramanirupan (No 3)

[2019] NSWSC 1654

Supreme Court

New South Wales

Medium Neutral Citation:

Shanmugathaas v Paramanirupan (No 3) [2019] NSWSC 1654

Hearing dates:

On the papers

Date of orders:

27 November 2019

Decision date:

27 November 2019

Jurisdiction:

Equity

Before:

Meagher J

Decision:

(1) Each of the parties bear his or her own costs of the plaintiffs’ notice of motion filed 27 May 2019 and amended on 23 July 2019.

 

(2) The defendants’ notice of motion filed 30 May 2019 is dismissed.

 (3) The defendants pay the plaintiffs’ costs of the motion of 30 May 2019, but only in relation to costs the incurring of which was made necessary solely by reason of the making of that application.

Catchwords:

COSTS – party/party – general rule that costs follow the event – application of the rule and discretion – where both parties partially successful – where one notice of motion abandoned prior to hearing – no question of principle

Category:

Costs

Parties:

Sivapragasam Shanmugathaas (First Plaintiff)
Suganthiny Shanmugathaas (Second Plaintiff)
Sathyanparamatheva Paramanirupan (First Defendant)
Praveena Sathyanparamatheva (Second Defendant)

Representation:

Solicitors:

  Nexus Law Group (Plaintiffs)
Defendants (represented by the First Defendant)

File Number(s):

2016/00310669

Publication restriction:

Nil

Judgment

1. On 25 November 2019 the Court made orders to the following effect, with the result that the substantial questions between the parties in relation to the winding up of the partnership between them have been resolved:

1. Declare that the entitlements of the parties under the terms of the Joint Venture Agreement to a distribution of the profits of that venture are as recorded in Tables 25, 26, 27 and 28 as annexed to the short minutes recording those orders.

2. Order that orders 5(a) and (b) made by Parker J on 10 July 2018 be set aside.

3. Direct that the plaintiffs have leave to apply for the appointment of a receiver to sell the property at 30A Hill Street, Wentworthville NSW should the defendants not pay to the plaintiffs by the end of 16 December 2019 the amount of $293,156.49 in Table 28.

2. There remains the question as to the costs of the two motions dealt with by the Court in the hearing on 23 and 24 September 2019. The Court now has the written submissions of the parties in relation to those costs, the plaintiffs’ submissions made by their solicitors and the defendants’ submissions made by Mr Paramanirupan.

3. The plaintiffs submit that as the defendants’ notice of motion of 30 May 2019 was abandoned just prior to the hearing, it should be dismissed and the defendants ordered to pay their costs of that motion. In relation to the plaintiffs’ amended motion of 23 July 2019 it is submitted that they were substantially successful, and accordingly that the defendants should pay 80 per cent of their costs of that motion.

4. The defendants oppose the making of those orders and instead seek an order that the plaintiffs pay their costs of the proceedings from 11 March 2016. They also seek other orders including for the removal of a caveat and that the plaintiffs “comply with the necessary Commonwealth (GST) and statutory requirements for the JV”. These “other” matters are not before the Court, and their subject matter has to some extent been dealt with by the earlier orders of the Court. For those reasons they are not further considered.

5. It is convenient to deal first with the costs of the plaintiffs’ amended motion. As my earlier reasons indicate there were four specific matters raised by that motion with respect to the calculation of the parties’ entitlements under the Joint Venture: see [2019] NSWSC 1306 at [12]. Two of those issues were resolved in favour of the plaintiffs and two in favour of the defendants. In relation to those four issues the plaintiffs correctly observe that those which occupied most of the time in submissions and argument were the two issues resolved in the plaintiffs’ favour. However as they also observe a “further issue” which occupied much of the hearing time was whether the Court should accept the receivers’ report as correctly estimating the value of the plaintiffs’ contributions to the construction and development of the property at $919,525. That question was expressly raised by the amended motion which sought a declaration to that effect, as well as an order that the receivers’ report and calculations be amended to include that amount.

6. Ultimately the defendants were successful in their opposition to the adoption of that amount, albeit only by having it reduced by $47,034. Nevertheless the evidence and argument in relation to that issue occupied significantly more than half of the hearing on 23 and 24 September 2019.

7. In the circumstances described above, the plaintiffs are entitled to their costs of responding to the defendants’ motion of 30 May 2019, but only in relation to costs the incurring of which was made necessary solely by reason of the making of that application; the intent being that costs which relate to matters also dealt with by the plaintiffs’ amended notice of motion should not be recovered by this order. In relation to that amended notice of motion, and the original notice of motion filed on 27 May 2019, there should be no order as to costs having regard to the plaintiffs’ success on two of the four specific issues raised, the defendants’ success on the issue as to the amount to be allowed as the plaintiffs’ contribution and the time taken in the resolution of those respective issues.

8. Accordingly I make the following orders in addition to those made on 25 November 2019:

1. Each of the parties bear his or her own costs of the plaintiffs’ notice of motion filed 27 May 2019 and amended on 23 July 2019.

2. The defendants’ notice of motion filed 30 May 2019 is dismissed.

3. The defendants pay the plaintiffs’ costs of the motion of 30 May 2019, but only in relation to costs the incurring of which was made necessary solely by reason of the making of that application.

9. I have made no order as to the costs of the issues resolved by this judgment, on the basis that those costs should be borne by the parties.

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