Sheridan International Pty Limited v C.S. Brooks Inc

[2005] NSWSC 218

CITATION:	Sheridan International Pty Limited & Ors v C.S. Brooks Inc. [2005] NSWSC 218
HEARING DATE(S):	11/3/05
JUDGMENT DATE :	18 March 2005
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
DECISION:	The defendant to the first cross claim, Mr Moore, pay 80% of CS Brooks' costs of and incidental to the Amended Notice of Motion filed 28 February 2005.

CATCHWORDS:	Costs
LEGISLATION CITED:	Fair Trading Act 1942 (NSW) Trade Practices Act 1974 (Cth).
PARTIES:	Sheridan International Pty Limited (ACN 094 142 060) (First Plaintiff) Sheridan Australia Pty Limited (ACN 094 091 380) (Second Plaintiff) Sheridan U.S. Inc. (Third Plaintiff) C.S. Brooks Inc. (Defendant) C. S. Brooks Inc. (Cross Claimant to the First Cross-Claim) Andrew Barrington Moore (Cross Defendant to the First Cross-Claim C. S. Brooks Inc. (Cross Claimant to the Second Cross Claim) Francis Keith Alfredson & Ors trading as Arthur Andersen (Cross Defendants to the Second Cross Claim)
FILE NUMBER(S):	SC 50059/04
COUNSEL:	Mr F Douglas QC, Ms K Rees (applicant Mr Moore, Cross Defendant to the First Cross Claim) Mr Lindsay SC, Mr M Dicker (respondent C.S. Brooks Inc., Cross Claimant to the First Cross Claim)
SOLICITORS:	Henry Davis York (applicant Mr Moore) Horton Rhodes (respondent C.S. Brooks Inc.)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Friday 18 March 2005

50059/04 Sheridan International Pty Limited & Ors v C.S. Brooks Inc.

JUDGMENT

Costs

1 The issue of costs of the notice of motion by Mr Moore filed on 17 December 2004 is presently before the Court for determination.

2 The respective submissions have been reduced to writing

3 The submissions advanced by Mr Moore have focused upon the fact that on 18 February 2005, under cover of its submissions in reply, CS Brooks sought leave to substantially amend the first cross claim and file a reply, introducing the following additional causes of action / issues:

· reliance on exceptions under the 1991 Act, being

(i) “serious and wilful misconduct”; and

(ii) Mr Moore’s actions “did not occur in the course of, and did not arise out of” his employment;

· reliance on the reference to professional activity in the definition of “trade or commerce” in the Fair Trading Act 1942 (NSW),

· equitable claims; and

· ancillary liability under the Trade Practices Act 1974 (Cth).

4 The propositions advanced are:

· that these amended pleadings, CS Brooks essentially recognized the weakness of the first cross claim, in respect of which the motion was originally filed. CS Brooks also, thereby, dramatically changed the landscape on which the motion was argued;

· Mr Moore has been partially successful in that CS Brooks recognizes that its claim under the Trade Practices Act 1974 (Cth) is not maintainable. The appropriate course is that paragraph 14A of the amended first cross claim and paragraph (c1) of the prayers for relief should be struck out;

· For these reasons, the cost of the motion should be costs in the cause.

5 The submissions advanced by CS Brooks are as follows:

B. Background

1. The background to the question of the costs of Mr Moore’s Amended Notice of Motion, leave to file which was granted by the Court on 28 February 2005, is as follows:

(a) Mr Moore filed his original Notice of Motion on 17 December 2004;

(b) the Motion was listed for hearing on 28 February 2005;

(c) Mr Moore filed and served his first submissions on 3 February 2005;

(d) in answer to Mr Moore’s submissions dated 3 February 2005, CS Brooks filed and served responsive submissions dated 18 February 2005 which attached, inter alia, a proposed Amended First Cross-Claim and a proposed Reply to Defence to the First Cross-Claim. CS Brooks indicated in its submissions dated 18 February 2005 that it proposed to apply for such leave as might be necessary to file the proposed Amended First Cross-Claim and the proposed Reply to Mr Moore’s Defence to Cross-Claim: see paragraph 2 of CS Brooks’ submissions dated 18 February 2005;

(e) on the morning of the hearing on 28 February 2005 Mr Moore served:

(i) lengthy further submissions dated 28 February 2005 which dealt with all the additional matters raised in CS Brooks’ proposed Amended Cross-Claim and proposed Reply to Mr Moore’s Defence to the Cross-Claim; and

(ii) a proposed Amended Motion;

(f) at the commencement of the hearing on 28 February 2005, the Court granted, by consent, leave to CS Brooks to file in Court an Amended First Cross-Claim in the form of Attachment C to the CS Brooks submissions dated 18 February 2005 and also granted leave to CS Brooks to file a Reply in the form of Attachment B to CS Brooks’ submissions dated 18 February 2005: see page 2 of the transcript;

(g) the hearing continued on 28 February 2005 on the basis of the issues raised in those two new pleadings and on the basis of the further issues discussed by Mr Moore in his submissions served on the morning of the hearing;

(h) CS Brooks sought and obtained leave to file additional submissions responding to the further matters raised in Mr Moore’s further submissions dated 28 February 2005. Such further submissions on behalf of CS Brooks dated 2 March 2005 were filed and served on that day; and

(i) Mr Moore sought and obtained leave on 28 February 2005 to file further submissions in reply to CS Brooks’ submissions which were in due course filed and served dated 8 March 2005.

2. Accordingly, it may be seen that:


(a) the issues raised in Mr Moore’s initial submissions dated 3 February 2005 were still considered by the parties and the Court at the hearing on 28 February 2005 and were decided in the judgment handed down on 11 March 2005;

(b) the hearing proceeded on 28 February 2005 on the basis of the matters raised in the additional proposed pleadings which were annexed in draft to CS Brooks’ submissions dated 18 February 2005; and

(c) all additional submissions filed by the parties also considered the further matters raised in the additional pleadings annexed to CS Brooks’ submissions dated 18 February 2005.

3. Therefore, no time was wasted by Mr Moore in preparing his original submissions dated 3 February 2005 when additional issues were later raised by CS Brooks. The matters raised by Mr Moore in his first submissions were still relevant at all times in the hearing and were decided in the judgment.

Decision

6 In my view there is substance in the submissions by C S Brooks to the following effect:

· apart from the cause of action under the Trade Practices Act, the amended notice of motion filed by Mr Moore has been dismissed. The normal order as to costs is that costs should follow the event;

· both parties were represented by senior counsel at the hearing on 28 February 2005 and very detailed submissions were filed and served by both parties;

· it is clear that very substantial costs were incurred by both parties in relation to the amended notice of motion;

· CS Brooks achieved substantial success on the amended notice of motion;

· Mr Moore was aware of CS Brooks’ proposed amended first cross-claim and proposed amended reply from 18 February 2005 and argument proceeded thereafter based on the matters raised in those proposed pleadings.

· further, all matters raised by Mr Moore in his submissions dated 3 February 2005 were later fully argued and considered by the Court and thus there was no waste of the time or effort devoted to those submissions;

· the reasoning adopted by the Court for dismissing the further amended notice of motion is, in substance, that put forward by CS Brooks in its various submissions: See paragraph 17 of the judgment;

· even if the proposed pleadings “changed the landscape” on which the motion was argued, the vast preponderance of the work on the motion by both parties was devoted to the pleadings including the proposed amended pleadings;

· Mr Moore has been successful in relation to the Trade Practices Act claim but this was only one of numerous claims made by CS Brooks in its pleadings and CS Brooks has been successful on the vast preponderance of the claims.

7 The proper order to be made in a principled approach to the discretion as to costs is as follows:

The defendant to the first cross-claim, Mr Moore, pay 80% of CS Brooks’ costs of and incidental to the Amended Notice of Motion filed 28 February 2005.

8 That order is made.

I certify that paragraphs 1 - 8
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on 18 March 2005

___________________
Susan Piggott
Associate

18 March 2005