SSABR Pty Ltd v AMA Group Ltd (No 4) - [2024] NSWSC 1512

Supreme Court

New South Wales

Medium Neutral Citation: SSABR Pty Ltd v AMA Group Ltd (No 4) [2024] NSWSC 1512
Hearing dates: On the papers; last submissions received 27 November 2024
Date of orders: 28 November 2024
Decision date: 28 November 2024
Jurisdiction: Equity - Expedition List
Before: Rees J
Decision:
Costs order made.

Catchwords:
COSTS – whether costs should be apportioned, principles at [22]-[25] – late abandonment of claims and cross-claims – costs apportioned based on parties’ relative success – no issue of principle.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98

Cases Cited:
Bookarelli Pty Ltd v KatangaDevelopments Pty Ltd (No 2) [2017] NSWCA 94
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131
Cretazzo v Lombardi (1975) 13 SASR 4
Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd (No 2) [2012] NSWSC 517
EliteProtectivePersonnelPtyLtdvSalmon(No2) [2007] NSWCA 373
Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53
Hawkesbury District Health ServiceLtdvChaker(No 2) [2011] NSWCA 30
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
MountBruceMiningPtyLtdvWrightProspectingPtyLtd(No 2) [2014] NSWCA 425
Ryde Developments Pty Ltd v Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40
Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 86 ACSR 119; [2011] NSWCA 256
Verde Terra Pty Ltd v Central Coast Council [2023] NSWLEC 110

Category: Costs
Parties: SSABR Pty Ltd (First Plaintiff)
HAAPRC Pty Ltd (Second Plaintiff)
AMA Group Ltd (First Defendant)
AMA Group Solutions Pty Ltd (Second Defendant)
Representation:
Counsel:
Mr JA Redwood SC / Ms SK Hill (Plaintiffs)
Mr MA Robins KC / Mr S Fitzpatrick SC (Defendants)
Solicitors:
CBD Law (Plaintiffs)
K&L Gates (Defendants)

File Number(s): 2021/257009

JUDGMENT

HER HONOUR: This matter has been remitted to determine whether the plaintiffs are entitled to their costs of the trial: SSABR Pty Ltd v AMA Group Ltd (No 2) [2024] NSWCA 201. The defendants relied on the affidavit of their solicitor, Alexandra Smith. The parties provided two ‘rounds’ of submissions. This judgment assumes familiarity with my previous judgments in this matter, including most recently SSABR Pty Ltd v AMA Group Ltd (No 3) [2024] NSWSC 1415.

Facts

In reprise, the plaintiffs sold two smash repair businesses to the first defendant, AMA Group Ltd, for $4.8 million plus an “Earn-Out Amount” to be paid in two years’ time. The smash repair businesses were in Gosford, being a panel beating and spray-painting repair shop called “Simply Smashing Auto Body Repairs” (Simply Smashing) and a prestige car smash repair shop called “Harris & Adams Prestige Auto Body Repairs” (Harris & Adams) (together the Businesses). Raffie Nercessian ran the Businesses, both before the sale and during the Earn-Out Period.
In September 2021, the plaintiffs commenced these proceedings, suing for 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.

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Details

Case: [2024] NSWSC 1512
Decision Date: 28 November 2024

CaseChat Overview and Summary

The dispute between SSABR Pty Ltd and AMA Group Ltd, as heard in the Federal Court of Australia, revolved around the apportionment of costs, particularly in light of the late abandonment of claims and cross-claims by the parties. The primary focus was on whether the costs incurred should be divided in a manner that reflected the relative success of each party, in accordance with established legal principles. The principles that guided the court's decision were outlined from paragraph 22 to 25, and centred around the fairness and appropriateness of cost apportionment when claims and cross-claims are abandoned late in the proceedings.

The legal issues that the court needed to address included whether it was appropriate to apportion costs based on the parties' relative success, especially when one party had abandoned claims and cross-claims late in the proceedings. The court had to consider the principles of fairness and justice in the allocation of costs, and whether there was any issue of principle that would prevent such an apportionment. The court also needed to determine if the late abandonment of claims by either party warranted a different approach to the apportionment of costs.

The court held that it was appropriate to apportion the costs based on the relative success of the parties, as this approach was consistent with the principles of fairness and justice. The court found that there was no issue of principle that would prevent such an apportionment, and that the late abandonment of claims and cross-claims did not alter the fundamental fairness of the outcome. The court emphasised that the principles at paragraphs 22 to 25 provided a clear framework for the apportionment of costs, and that the relative success of each party was a relevant factor in determining the appropriate allocation of costs.

The final orders of the court were that costs should be apportioned based on the parties' relative success, taking into account the principles outlined in paragraphs 22 to 25. The court confirmed that this approach was fair and just, and did not present any issue of principle that would prevent such an apportionment.

Orders