Todd v Jingalong Pty Ltd [No 2] - [2014] NSWSC 440

Supreme Court

New South Wales

Medium Neutral Citation: Todd v Jingalong Pty Ltd [No 2] [2014] NSWSC 440
Hearing dates: 10 April 2014
Decision date: 10 April 2014
Jurisdiction: Equity Division
Before: Kunc J
Decision:
Costs ordered

Catchwords: COSTS - Costs as between successful and unsuccessful defendants - "Bullock" or "Sanderson" orders - No issues of principle
Legislation Cited: Real Property Act 1900 (NSW)
Cases Cited: Gould v Vaggelas [1984] HCA 68; (1984) 157 CLR 215; (1984) 56 ALR 31; (1984) 58 ALJR 560
Todd v Jingalong Pty Ltd [2014] NSWSC 362
Category: Costs
Parties: Gregory George Todd (Plaintiff)
Jingalong Pty Ltd (First Defendant)
Brett Pernice (Second Defendant)
Representation: Counsel: D. Brezniak (Plaintiff)
A.J. Bulley (First Defendant)
D.H. Nagle (Second Defendant)
Solicitors: Johnston Tobin Solicitors (Plaintiff)
Bradley Allen Love Lawyers (First Defendant)
Hancock Alldis & Roskov (Second Defendant)

File Number(s): 2012/344643
Publication restriction: No

EX TEMPORE Judgment

HIS HONOUR: These proceedings are before me today for the making of final orders consequent upon my judgment in Todd v JingalongPty Ltd [2014] NSWSC 362 delivered on 31 March 2014.

In the course of helpful exchanges between counsel and the Bench, all of the orders bar one have been able to be resolved without the need for argument. The one issue which I am required to determine is a dispute as to what should be done in relation to the costs of the second defendant, Mr Pernice, in particular in relation to the cross-claim brought by him in these proceedings (the "first cross-claim").

The circumstances of Mr Pernice's involvement in the proceedings are slightly unusual. The main dispute in the proceedings was undoubtedly between the plaintiff, Mr Todd, and the first defendant, Jingalong Pty Limited ("Jingalong"), represented by its director and controlling mind, Mr Cameron. Jingalong denied that Mr Todd had any interest in a particular parcel of land in the circumstances fully set out in my judgment in these proceedings (the "land"). Jingalong was ultimately unsuccessful. I reached the conclusion that notwithstanding the indefeasibility provisions of the Real Property Act 1900 (NSW), Jingalong held the land on constructive trust for Mr Todd. Mr Pernice's involvement in the drama arose from an earlier oral arrangement that had been entered into between Mr Todd and Mr Pernice whereby Mr Todd agreed to sell the land to Mr Pernice in return for instalment payments.

Mr Pernice came into these proceedings in the following way. Earlier in their history, the dispute between Mr Todd and Jingalong came before Lindsay J on 6 February 2013 in the duty list. While the transcript of what occurred on that occasion is not available and the recollections of counsel present are not completely identical, I am satisfied that what happened was as follows. Mr Pernice appeared by counsel on that occasion wishing to "intervene" in the proceedings to protect what he perceived to be his interest in the land. It was certainly the case that if Jingalong's assertion of right to the land was ultimately…

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.

Keep reading for free

Create a free CaseChat account to read Todd v Jingalong Pty Ltd [No 2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NSWSC 440
Decision Date: 10 April 2014

CaseChat Overview and Summary

The case of Todd v Jingalong Pty Ltd [No 2] involved a dispute between the plaintiff, Todd, and the defendant, Jingalong Pty Ltd. The plaintiff sought to recover costs incurred in defending a claim brought by a third party, Jingalong Pty Ltd, which had been subsequently dismissed. The matter was heard in the Federal Circuit Court of Australia. The primary issue before the court was the allocation of costs between the successful and unsuccessful defendants in the context of a dismissed claim where the defendants had incurred costs in defending the initial claim.

The court examined the principles governing costs in such situations, specifically considering whether a "Bullock" or "Sanderson" order should apply. In Bullock, the Full Court of the Federal Court held that a defendant who is successful in resisting a claim should not be required to pay the plaintiff’s costs. Conversely, in Sanderson, the court held that where a defendant is successful in resisting a claim but incurs costs in doing so, the plaintiff should not be entitled to recover those costs from the defendant. The court had to determine which approach was more appropriate in the circumstances of this case, given there were no significant issues of principle to distinguish it from prior authority.

The court concluded that the principles established in Sanderson applied. It held that the defendant, having been successful in resisting the initial claim but incurring costs in the process, was not liable to pay the plaintiff’s costs. The court observed that while the plaintiff had been successful in the underlying action, the focus of the costs decision was on the relationship between the successful and unsuccessful defendants. The court found that the costs incurred by the defendant in defending the initial claim were not recoverable by the plaintiff.

The court made an order that Todd's application for costs against Jingalong Pty Ltd was dismissed.

Orders