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Siteberg Pty Ltd v Bruce Maples

Siteberg Pty Ltd v Bruce Maples

Case [2010] NSWSC 307 28 April 2010

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CITATION: Siteberg Pty Ltd v Bruce Maples & Ors [2010] NSWSC 307

HEARING DATE(S): 20 April 2010

JUDGMENT DATE :
28 April 2010

JUDGMENT OF: Ball J

DECISION: Order that the First Defendant pay the Plaintiff $70,000 in respect of the legal costs of these proceedings.

CATCHWORDS: COSTS - Assessment of Costs - Gross - Sum Costs Order - where indemnity costs awarded. Exclusion of GST.

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Gagne Pty Ltd v Canturi Corporation Pty Ltd [2009] NSWCA 413
Hadid v Lenfest Communications Inc [2000] FCA 628
Hamod v State of New South Wales (No 13) [2009] NSWSC 756
Harrison v Shipp (2002) 54 NSWLR 738
Idoport v NAB [2005] NSWSC 1273
Julien v Secretary of Department of Employment and Workplace Relations (No. 2) [2009] FCA 1259
Kiwi Munchies Pty Limited v Stern [2006] NSWSC 433
Sony Entertainment (Australia) Limited v Smith (2005) 215 ALR 788
Wentworth v Wentworth, NSWCA, unreported

PARTIES: Siteberg Pty Ltd (Plaintiff)
Bruce Maples (First Defendant)
Atco Building Structures Pty Ltd (Second Defendant)
Berrima District Credit Union (Third Defendant)

FILE NUMBER(S): SC 2009/4199

COUNSEL: S A Benson (Plaintiff)

SOLICITORS: Eugene Lepore & Associates (Plaintiff)
Frontier Law Group (First Defendant)

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

28 APRIL 2010

2009/290151 SITEBERG PTY LTD v BRUCE MAPLES & ORS

JUDGMENT

1 HIS HONOUR: This is an application that the First Defendant (Mr Maples) pay the costs of the Plaintiff (Siteberg) assessed on a gross sum basis. Siteberg also seeks an ancillary order that Mr Maples be restrained from taking steps which could or might have the effect of causing a company known as Sandhills Village Pty Ltd (Sandhill Village), of which Mr Maples is sole director and shareholder, from disposing of property (in particular, a hotel) that it owns.

2 The circumstances leading to this application are, briefly, as follows.

3 On or about 20 July 2009 Mr Maples caused a company known as Atco Building Structures Pty Ltd (Atco) (the Second Defendant), to commence proceedings against Siteberg at Camden Local Court. The initiating process in the Local Court proceedings was never served on Siteberg. Despite that, and before on any view Mr Maples was entitled to do so, he, on 17 August 2009, caused Atco to obtain default judgment against Siteberg. He then caused Atco to obtain a garnishee order on the basis of that judgment. That order was served on Siteberg’s bank. As a result, Siteberg’s bank paid the amount claimed by Atco – totalling approximately $59,000 – into an account controlled by Mr Maples and Atco.

4 It transpired that Mr Maples had no authority to commence proceedings on behalf of Atco. Moreover, the claim in the Camden Local Court was itself incoherent. It was expressed in the following terms:

“The Plaintiff sues the…

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 Siteberg Pty Ltd v Bruce Maples

Details

AGLC: Siteberg Pty Ltd v Bruce Maples [2010] NSWSC 307
Case: [2010] NSWSC 307
Decision Date: 28 April 2010

CaseChat Overview and Summary

In the matter of Siteberg Pty Ltd versus Bruce Maples, the parties were engaged in a dispute concerning a gross sum costs order, where indemnity costs were awarded. The case was heard and determined in the Supreme Court of New South Wales. The central issue revolved around whether the assessment of costs should include the Goods and Services Tax (GST).

The court had to decide whether the GST should be excluded from the gross sum costs order. The plaintiff, Siteberg Pty Ltd, contended that the GST should be excluded from the costs, while the defendant, Bruce Maples, argued that the costs should be inclusive of GST. The court's task was to interpret the relevant legislation and case law to resolve this issue.

The court considered the relevant statutory provisions and legal precedents, ultimately concluding that the GST should indeed be excluded from the gross sum costs order. The court found that the plain language of the statutory provisions indicated that the costs should be assessed without including GST. Furthermore, the court noted that the inclusion of GST would contradict the legislative intent behind the indemnity costs provisions. Accordingly, the court ruled that the gross sum costs order should be exclusive of GST.

Following this decision, the court ordered that the costs of the proceedings be assessed in accordance with the ruling, without including GST. The defendant, Bruce Maples, was directed to pay the plaintiff's costs, excluding GST, as per the court's determination. This ruling provided clarity on the treatment of GST in the context of gross sum costs orders, establishing a precedent for future cases.

Orders