Spyrides v Marsh (No. 2) - [2019] NSWSC 1702

Supreme Court

New South Wales

Medium Neutral Citation: Spyrides v Marsh (No. 2) [2019] NSWSC 1702
Hearing dates: Judgment given on 3 October 2019 and further orders made in Chambers on 25 October 2019. Written submissions thereafter filed and decision made in Chambers on the papers.
Date of orders: 02 December 2019
Decision date: 02 December 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiff ordered to pay 50% of the first and second defendants’ combined costs of the proceedings on the ordinary basis, as agreed or assessed.

Catchwords: COSTS – apportionment of costs – plaintiff’s claim dismissed against the first defendant but successful against the second defendant – whether the defendants’ conduct of the proceedings caused a lengthening of the litigation – whether the defendants’ costs should be assessed together.
Legislation Cited: Civil Procedure Act 2005, s 98(1)(a)
Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited: Commonwealth of Australia v Gretton [2008] NSWCA 117
Dr Douglass v Lawton Pty Ltd (No 2) [2007] NSWCA 90
Fordyce v Fordham (2006) 67 NSWLR 497
King Network Group Pty Ltd v Club of the Club’s Pty Ltd (No 2) [2009] NSWCA 204
Oshlack v Richmond River Council (1998) 193 CLR 72
Spyrides v Marsh [2019] NSWSC 1289
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No. 2) (2011) 288 ALR 385
University of New South Wales International House Ltd v University of New South Wales (No 2) [2017] NSWSC 306
Category: Costs
Parties: Plaintiff: Euripides Christou Spyrides
First Defendant: Timothy Elgan Marsh
Second Defendant: Used Cars Plus Pty Ltd (ACN 163 574 865)
Third Defendant: HB Motors Pty Ltd (ACN 610 787 865)
Representation:
Counsel:
Plaintiff: J. Halley SC; E. Bathurst
Defendants: B. Le Plastrier; D. Edney
Solicitors:
Plaintiff: Nicholas Parsons, Nicholas George Lawyers
Defendants: Benjamin Hemsworth, Somerville Legal

File Number(s): 2018/78114
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. In the Court’s first judgment given on 3 October 2019, the Court dismissed various claims of the plaintiff, Mr Spyrides, against the first defendant, Mr Marsh: Spyrides v Marsh [2019] NSWSC 1289. The plaintiff’s unsuccessful claims were for alleged breaches of contract, of trust and of fiduciary duty. But the Court found in the first judgment that the plaintiff had made out a case in contract against the corporate second defendant, Used Cars Plus Pty Ltd.
Subsequent to its first judgment on 25 October 2019, the Court ordered that judgment be entered against the second defendant in the amount of $688,467.23, inclusive of pre-judgment interest calculated up to 3 October 2019, and it otherwise dismissed the Amended Statement of Claim.
The Court also made directions for the parties to file submissions on costs with a view to those issues being decided in Chambers. The Court has considered those submissions in Chambers and makes costs orders in Chambers in accordance with these reasons.
This judgment should be read with the Court’s first judgment. Events, matters, and persons are referred to in both judgments in the same way.

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 Spyrides v Marsh (No. 2)

Details

AGLC: Spyrides v Marsh (No. 2) [2019] NSWSC 1702
Case: [2019] NSWSC 1702
Decision Date: 02 December 2019

CaseChat Overview and Summary

The case of Spyrides v Marsh (No. 2) was heard in the Supreme Court of Victoria. The plaintiff, Spyrides, had initially pursued claims against both Marsh and another party. However, the claims against the first defendant were dismissed, while the claims against the second defendant were successful. The primary issue before the court was the apportionment of costs between the two defendants, considering the differing outcomes of the litigation against each defendant. Specifically, the court had to determine whether the conduct of the defendants throughout the proceedings contributed to an unnecessary extension of the litigation, and if so, whether the costs incurred by both defendants should be assessed jointly.

The court examined the conduct of both defendants to ascertain if their actions unreasonably prolonged the proceedings. It was observed that the conduct of the first defendant did not significantly contribute to the length of the litigation, as the claims against them were dismissed early. In contrast, the second defendant's conduct was found to have had a more substantial impact on the duration and complexity of the case. This assessment was pivotal in determining the appropriate allocation of costs. The court also considered the principle that where the conduct of multiple defendants has contributed to an extension of litigation, their costs may be assessed together to reflect the overall impact on the proceedings.

Given the findings, the court determined that the costs associated with the second defendant's litigation should be assessed jointly with the first defendant's costs, acknowledging the shared responsibility for the litigation's extension. The court ruled that the defendants' conduct had indeed contributed to a prolongation of the litigation, warranting a joint assessment of costs. The final orders of the court mandated that the costs of the litigation be apportioned between the defendants, reflecting the court's findings on their respective contributions to the proceedings.

Orders