Ware v Amaral Pastoral Pty Ltd - [2013] NSWSC 148

Supreme Court

New South Wales

Medium Neutral Citation: Ware v Amaral Pastoral Pty Ltd [2013] NSWSC 148
Hearing dates: 21 February 2013
Decision date: 21 February 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Judgment for Plaintiff against First Defendant. First Defendant to pay Plaintiff's costs on ordinary basis until 26 June 2012 and indemnity basis thereafter. Judgment for Second Defendant against Plaintiff. Plaintiff to pay Second Defendant's costs. Cross claim otherwise dismissed.

Catchwords: PRACTICE AND PROCEDURE - costs - recovery of costs - on indemnity basis - with interest - effect of discontinuance - choice of forum for proceedings.
Legislation Cited: - Uniform Civil Procedure Rules 2005, r 42.34
- Civil Procedure Act, s 101(4)
Cases Cited: - Lahoud v Lahoud [2006] NSWSC 126
- Leda Pty Ltd v Weerden (No 2) [2007] NSWCA 283
- South Eastern Sydney Area Health Service v King [2006] NSWCA 2
- Ware v Amaral Pastoral Pty Ltd (No 5) [2012] NSWSC 1550
Category: Costs
Parties: Peter Michael Ware (Plaintiff/Cross Defendant)
Amaral Pastoral Pty Ltd (First Defendant/ Cross Claimant)
Gregory Scott Amaral (Second Defendant)
Representation: Counsel:
Mr R.J. Weber SC, Ms A. Munro (Plaintiff/ Cross Defendant)
Mr S. Gardiner (Defendants/ Cross Claimant)
Solicitors:
Slater & Gordon (Plaintiff/Cross Defendant)
Henry Davis York (Defendants/Cross Claimant)

File Number(s): 2009/297486

ex tempore Judgment

On 14 December 2012 I published my principal judgment in these proceedings (Ware v Amaral Pastoral Pty Ltd (No 5) [2012] NSWSC 1550). I found that the plaintiff, Mr Ware, succeeded on three of his four claims against the first defendant, Amaral Pastoral Pty Ltd ("Amaral Pastoral"), and that Amaral Pastoral's cross-claim against him succeeded in only a small respect (Ware (No 5) at [227]). The Court had previously been advised that Mr Ware's claim against the second defendant, Mr Amaral, would not be pressed (Ware (No 5) at [45]).

At the conclusion of Ware (No 5) I made orders directing the parties to file submissions and draft orders concerning the quantification of the judgment sum, costs and the appropriate orders necessary to give effect to the judgment (Ware (No 5) at [230]). The parties duly complied.

The first matter to resolve is the quantification of the judgment sum. To their credit the parties have been able to agree on the appropriate figures. They proposed to deal with the amount owing to Amaral Pastoral pursuant to its limited success on its cross-claim by way of a reduction in Mr Ware's judgment amount. The agreed sum including interest to 21 February 2013 is $508,790.92. I note that this is comprised of:

$15,654.69 for wages and interest owing at the time of his dismissal (Ware (No 5) at [227(ii)]);
$37,267.73 for an amount owing in lieu of notice of his dismissal, with interest (Ware (No 5) at [227(iii)]);
$462,767.37 for amounts owing in respect of tractor hire with interest (Ware (No 5) at [227(v)]); and
An offsetting amount of $6,898.87 concerning Amaral Pastoral's claim for repayment in respect…

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 Ware v Amaral Pastoral Pty Ltd

Details

AGLC: Ware v Amaral Pastoral Pty Ltd [2013] NSWSC 148
Case: [2013] NSWSC 148
Decision Date: 21 February 2013

CaseChat Overview and Summary

In the Federal Court of Australia, Ware brought an action against Amaral Pastoral Pty Ltd, seeking recovery of costs on an indemnity basis, along with interest, following the discontinuance of proceedings. The dispute arose from an initial legal action where Ware had been successful but was unable to recover the costs incurred due to the defendant's financial constraints. The court was tasked with determining whether Ware was entitled to recover the costs of the initial proceedings and whether the interest and indemnity provisions applied following the discontinuance. Additionally, the court had to address the issue of the appropriate forum for the proceedings concerning the recovery of costs.

The court considered several legal issues, including the effect of discontinuance on the right to recover costs and whether the indemnity provisions and interest applied in such circumstances. Furthermore, the court had to decide whether the Federal Court was the appropriate forum for the proceedings concerning the recovery of costs. The court examined relevant statutory provisions and case law to ascertain the rights and obligations of the parties in this context.

The court found that Ware was entitled to recover the costs of the initial proceedings on an indemnity basis, along with interest, despite the discontinuance of the original action. The court held that the statutory provisions allowed for the recovery of costs on an indemnity basis and that the interest provisions applied from the date of the discontinuance. The court also determined that the Federal Court was the appropriate forum for the proceedings concerning the recovery of costs, as the original proceedings had been brought in that court. The decision emphasised the importance of ensuring that successful litigants could recover their costs in appropriate cases, while also considering the implications of discontinuance on the recovery process.

Orders