Supreme Court
New South Wales
Medium Neutral Citation: Shield Mercantile v Citigroup [2013] NSWSC 287 Hearing dates: 22/03/2013 Decision date: 22 March 2013 Before: McDougall J Decision: No further order as to costs of proceedings.
Catchwords: COSTS - costs follow the event - where amount recovered substantially less than amount claimed and disproportionate to costs of proceedings - no order as to costs. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Shield Mercantile v Citigroup [2013] NSWSC 117 Category: Costs Parties: Shield Mercantile Pty Ltd (Plaintiff)
Citigroup Pty Ltd (Defendant)Representation: Counsel:
M J Darke / T R Gordon (Plaintiff)
A A Henskens SC / A R Zahra (Defendant)
Solicitors:
McLachlan Thorpe Partners (Plaintiff)
Henry Davis York (Defendant)
File Number(s): 2008/290591
Judgment (EX TEMPORE - REVISED 22 MARCH 2013)
HIS HONOUR: The plaintiff (Shield) sued the defendant (Citigroup) claiming underpaid commissions in relation to debt collection assignments given by Citigroup to Shield, and claiming damages for breach of contract (including loss of the opportunity to make further, and supposedly profitable, debt collection agreements).
The proceedings were heard over some twelve days in October and November 2012.
I gave judgment on 28 February 2013: [2013] NSWSC 117. The parties are agreed that, on the assumption that my conclusions set out in those reasons are correct, Shield is entitled to recover some $144,316.46 for underpaid commission, nothing for damages for breach of contract or loss of opportunity, and some $89,014.39 in interest up until today's date. If my arithmetic is correct (and I acknowledge that is a more than usually unreliable assumption) the total is $233,330.85.
It may thus be seen that the twelve days of hearing each resulted in a recovery, net of interest, of about $12,000; or, including interest, a little under $20,000. It is I think certain that on the former basis the daily costs of running the trial exceeded the amount recovered day by day; and that is probably true on the latter basis also.
I reserved making any order as to costs, because I expected that there would be argument on that topic. That indeed proved to be the case.
Citigroup sought, in the alternative, a variety of costs orders.
Shield took the position that it had succeeded, and thus was entitled to its costs (UCPR r 42.1).
At the outset of the argument on costs, there was some question as to whether the debate could proceed today. That was because one of the elements in Citigroup's argument was a Calderbank offer made back in March 2011. The parties had engaged in minute analysis of Shield's success or failure compared to the amount offered.
Mr Henskens of Senior Counsel, who appeared with Mr Zahra of counsel for Citigroup, submitted that he could not deal with the question today because a recently served affidavit from Shield's solicitor, Mr Cockburn, indicated that Shield's costs, at the date the Calderbank offer was made, were about $45,000 more than had been thought. The exactness of the calculations…
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- Case
- [2013] NSWSC 287
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to decide were whether the defendant had indeed breached the contract and engaged in misleading or deceptive conduct, and if so, whether the plaintiff's damages were a direct result of those breaches. Additionally, the court needed to assess the amount of damages, if any, to be awarded to the plaintiff, and whether the costs incurred by the plaintiff in pursuing the case should be borne by the defendant.
In its decision, the court found that while the defendant had breached the contract and engaged in misleading or deceptive conduct, the plaintiff's claim for damages was not substantiated to the extent claimed. The court determined that the amount of damages recovered was significantly less than what was claimed and disproportionate to the costs incurred by the plaintiff in the proceedings. Consequently, the court ruled that there should be no order as to costs, meaning the plaintiff would not be compensated for the costs of the proceedings by the defendant.
No further orders were made by the court beyond the determination on costs. The court's decision effectively left the plaintiff with the burden of the costs incurred during the litigation, despite the partial success in proving the defendant's liability.
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