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TOMRA Collection Pty Ltd v Minto

TOMRA Collection Pty Ltd v Minto

Case [2021] NSWSC 1323 18 October 2021

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Supreme Court

New South Wales

Medium Neutral Citation: TOMRA Collection Pty Ltd v Minto [2021] NSWSC 1323
Hearing dates: 11 October 2021
Decision date: 18 October 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order the plaintiff to pay the defendant’s costs of the proceedings on the ordinary basis.

Catchwords:
COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 98
Uniform Civil Procedure Rules 2005 (NSW), rr 12.1, 42.19, 42.20

Cases Cited:
Australian Unity Funds Management Ltd v NorthWest Healthcare Australia RE Ltd [2021] NSWSC 1039
Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Cristovao v Registrar Trott [2019] FCAFC 88
Crosby v Hanley [2021] NSWSC 507
Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203; [2004] NSWCA 154
Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274
Freelancer International Pty Ltd v Matthew O’Kane [2019] NSWSC 159
Gundry v Sainsbury [1910] 1 KB 645
Harden v Willis Australia Group Services Pty Ltd [2021] NSWSC 1188
Harman v Secretary of State for the Home Department [1983] 1 AC 280
HCafe Chatswood Pty Ltd [2018] NSWSC 362
In the matter of HCafe Chatswood Pty Ltd [2018] NSWSC 362
McCullum v Ifield [1969] 2 NSWR 329
Murrumbidgee Irrigation Ltd v M & H Acar Pty Ltd [2019] NSWSC 807
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
OPENetworks Pty Ltd v Myport Pty Ltd [2019] FCA 1659
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Re Minister for Immigration & Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622 at 625; [1997] HCA 6
Shaw v Yarranova Pty Ltd and Anor [2011] VSCA 55
Sonnet Corp Pty Ltd v Wilson [2008] NSWSC 579
Tarry v Pryce (No 2) (1987) 37 NTLR 209; [1987] NTSC 59
Timothy John Olsen and Louise Sarah Olsen (as executors of the Estate of the late Valerie Marshall Olsen) v Second East Auction Holdings Pty Ltd t/as Sotheby’s Australia [2014] NSWSC 1840

Category: Costs
Parties: TOMRA Collection Pty Ltd (Plaintiff)
Laurie Minto (Defendant)
Representation:
Counsel:
D Mahendra (Plaintiff)
J Darams (Defendant)
Solicitors:
Landerer & Company (Plaintiff)
Seyfarth Shaw Australia (Defendant)

File Number(s): 2021/00220005
Publication restriction: Nil

Judgment

HER HONOUR: This matter, before me for hearing on 11 October 2021, concerned a dispute as to costs of the proceedings following the grant of leave on 14 September 2021 for the discontinuance by the plaintiff of its summons, filed on 2 August 2021. In essence, the dispute was as to whether the plaintiff, TOMRA Collection Pty Ltd (TOMRA), should pay the defendant (Mr Laurie Minto)’s costs of the proceedings (as Mr Minto contends, and as would ordinarily be the case pursuant to r 42.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)) or whether the Court should otherwise order (as TOMRA…

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 TOMRA Collection Pty Ltd v Minto

Details

AGLC: TOMRA Collection Pty Ltd v Minto [2021] NSWSC 1323
Case: [2021] NSWSC 1323
Decision Date: 18 October 2021

CaseChat Overview and Summary

TOMRA Collection Pty Ltd initiated proceedings against Minto in the Supreme Court of New South Wales. The dispute centred on the enforceability of a contractual clause that imposed a 20% penalty on late payments. TOMRA sought to recover the penalty under the contract, while Minto argued that the penalty clause was unenforceable due to its excessive nature and the principle of unconscionability. The court was required to determine whether the penalty clause was a legitimate pre-estimate of loss or an unenforceable penalty, as well as the appropriate allocation of costs between the parties.

The court examined the principles governing penalty clauses, particularly the requirement that the clause must be a genuine pre-estimate of loss. It held that the clause was not a genuine pre-estimate of loss and, therefore, constituted a penalty. However, the court also noted that TOMRA's claim was successful on the merits, and the penalty clause was unenforceable. As a result, the court considered the appropriate allocation of costs, taking into account the unsuccessful nature of Minto's defence and the fact that the proceedings had been discontinued. The court found that TOMRA was entitled to costs on a party/party basis.

The Supreme Court of New South Wales ordered that TOMRA Collection Pty Ltd recover its costs of the proceedings from Minto. The court emphasised that the general rule is that costs follow the event, and in this case, Minto's unsuccessful defence and the discontinuance of the proceedings justified an order for TOMRA to recover its costs. This decision underscores the importance of the principle that penalty clauses must be genuinely pre-estimates of loss and highlights the court's discretion in allocating costs where proceedings have been discontinued.

Orders