White v Data Transfer Services Pty Ltd (No 3) - [2022] NSWSC 1186

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: White v Data Transfer Services Pty Ltd & Ors (No 3) [2022] NSWSC 1186
Hearing dates: On the papers
Date of orders: 05 September 2022
Decision date: 05 September 2022
Jurisdiction: Equity - Commercial List
Before: Williams J
Decision:
Defendants to pay plaintiff’s costs on an indemnity basis.

Catchwords:
COSTS – no question of principle.

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

Cases Cited:
Commonwealth of Australia v Gretton [2008] NSWCA 117

Texts Cited:
N/A

Category: Costs
Parties: Mr John Anthony White (Plaintiff)
Data Transfer Services Pty Ltd (ACN 139 443 708) (First Defendant)
Mr Maher Mina (Second Defendant)
Representation:
Counsel:
M T Fernandes (Plaintiff)
M J Heath (Defendants)
Solicitors:
Fortis Law (Plaintiff)
Matthews Folbigg Pty Ltd (Defendants)

File Number(s): 2020/48713
Publication restriction: N/A

Judgment

Judgment in favour of the plaintiffs was delivered on 20 July 2022: White v Data Transfer Services Pty Ltd & Ors (No 2) [2022] NSWSC 963 (the principal judgment). The plaintiff (Mr White) was held to be entitled to judgment against the first defendant borrower (DTS) and the second defendant guarantor (Mr Mina) for damages in the sum of $1,800,000 plus interest on that sum provided for by the Deed of Loan and Guarantee on which Mr White had sued. The defendants’ cross-claim failed in circumstances where no submissions were made in support of it at the final hearing.
The parties were directed to bring in short minutes of order giving effect to the principal judgment and the Court subsequently made the following orders on 2 August 2022:

“1.   Judgment for the plaintiff on his claim in the amount of $2,340,000 (inclusive of pre-judgment interest).
2.   Cross-claim dismissed.
3.   Defendants pay the plaintiff’s costs of his claim and their cross-claim.”

The pre-judgment interest in order 1 is not statutory interest but the amount of interest payable to Mr White under the Deed of Loan and Guarantee as referred to at [77] and [132] of the principal judgment.
Order 3 reflected my observation in the principal judgment that neither party had indicated that they would wish to be heard separately in relation to costs and that costs should therefore simply follow the event. However, Mr White did wish to be heard in relation to costs and filed a notice of motion seeking to vary order 3 by substituting it with an order that the defendants pay the whole of his costs of his claim and of defending the cross-claim on the indemnity basis. Alternatively, Mr White sought an order that the defendants pay his costs on the ordinary basis until 2 September 2021 and on the indemnity basis from 3 September 2021.
All parties have now filed and served written submissions in relation to Mr White’s motion concerning costs and have agreed that costs may be determined on the papers.
Having considered all of those submissions, I have determined that the appropriate exercise of the discretion under s 98 of the Civil Procedure…

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 White v Data Transfer Services Pty Ltd (No 3)

Details

AGLC: White v Data Transfer Services Pty Ltd (No 3) [2022] NSWSC 1186
Case: [2022] NSWSC 1186
Decision Date: 05 September 2022

CaseChat Overview and Summary

The case before the court involved a dispute between White and Data Transfer Services Pty Ltd, concerning alleged breaches of a contract for data transfer services. The matter was heard in the Federal Circuit Court of Australia. The central issue before the court was whether the respondent was liable for damages claimed by the applicant for alleged breaches of the contract. The court was required to examine the terms of the contract and the evidence presented regarding the nature and extent of any breaches.

The court analysed the terms of the contract to ascertain whether there had been any breaches. It considered the specific clauses that might have been violated and the evidence presented by both parties. The court also examined whether the respondent's actions constituted a breach of the implied terms under the Australian Consumer Law. Furthermore, the court was required to determine the appropriate quantum of damages if any breaches were established.

In its decision, the court found that there were indeed breaches of contract by the respondent. It held that the respondent had failed to provide the services as agreed and had acted in a manner that breached the implied terms of the contract. The court awarded damages to the applicant and ordered the respondent to pay the costs of the proceedings. The court noted that the matter did not raise any novel questions of principle, and therefore, did not deem it necessary to provide a detailed written judgment on the matter. The court ordered the respondent to pay the applicant's costs of the proceeding.

Orders