Wormald v Maradaca Pty Ltd - [2021] NSWCA 307

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wormald v Maradaca Pty Ltd [2021] NSWCA 307
Hearing dates: On the papers
Date of orders: 13 December 2021
Decision date: 13 December 2021
Before: Bathurst CJ; Bell P; Payne JA
Decision:
Notice of motion dismissed with costs

Catchwords:
COSTS – application for gross sum costs order – where gross sum costs order was not sought by the applicants when an earlier application to vary the original costs orders was sought and made – application refused

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Federal Court Rules 1979 (Cth)
Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A)

Cases Cited:
Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119
Eliezer v The Council of St Andrews Cathedral School (No 2) [2021] NSWCA 227
Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164
Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327
Short v Crawley (No 45) [2013] NSWSC 1541

Category: Costs
Parties: Shaun Edmund Wormald (First Appellant)
Wirra Wirra Investments Pty Ltd as trustee for the Wormald Trust (Second Appellant)
John Leonard Barrett (First Cross-Appellant)
Steven Moran (Second Cross-Appellant)
Maradaca Pty Ltd (First Respondent)
ELB Pty Ltd (Second Respondent)
Representation:
Counsel:

A d’Arville and B Yin (First and Second Respondents)

Solicitors:
Marque Lawyers (Appellants and Cross-Appellants)
John De Mestre & Co (First and Second Respondents)

File Number(s): 2020/152628
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2020] NSWSC 440

Date of Decision:

24 April 2020

Before:

Lindsay J

File Number(s):

2016/56273

Judgment

THE COURT: On 13 November 2020, we gave judgment in this matter, allowing an appeal brought by Mr Shaun Edmund Wormald and Wirra Wirra Investments Pty Ltd as trustee for the Wormald Trust (Wirra Wirra) (together, the Appellants), and allowing a cross-appeal brought by Mr John Leonard Barrett and Mr Steven Moran (the Cross-Appellants) against Maradaca Pty Ltd and ELB Pty Ltd (together, the Respondents): see Wormald v Maradaca Pty Ltd [2020] NSWCA 289. These reasons assume familiarity with that judgment.
The Court set aside the orders of the primary judge of 24 April 2020 and 8 May 2020 and in lieu thereof, entered the following orders:

“(3) Order that the first respondent [Maradaca Pty Ltd] pay the second appellant [Wirra Wirra] $114,639.00 and interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW).
(4) Order that the first respondent [Maradaca Pty Ltd] pay the first cross-appellant [John Leonard Barrett] $30,289.00 and interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW).
(5) Order that the first respondent [Maradaca Pty Ltd] pay the second cross-appellant [Steven Moran] $55,072.00 and interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW).
(6) Order that the Further Amended Statement of Cross-Claim be dismissed with costs.
(7) The first and second…

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 Wormald v Maradaca Pty Ltd

Details

AGLC: Wormald v Maradaca Pty Ltd [2021] NSWCA 307
Case: [2021] NSWCA 307
Decision Date: 13 December 2021

CaseChat Overview and Summary

In *Wormald v Maradaca Pty Ltd*, the applicants sought a gross sum costs order from the Court of Appeal of New South Wales. This application followed an earlier unsuccessful attempt by the applicants to vary existing costs orders made in the proceedings.

The central legal issue before the Court was whether it should grant a gross sum costs order, notwithstanding that such an order had not been sought by the applicants when they previously applied to vary the original costs orders.

The Court of Appeal dismissed the application. Their Honours reasoned that the applicants had not demonstrated any sufficient reason to depart from the usual practice of awarding costs on an indemnity basis, particularly given that they had not sought a gross sum order at an earlier, more opportune time. The Court found no basis to grant the relief sought.

The notice of motion was dismissed with costs.

Orders

Orders of the court

Notice of motion dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Wormald v Maradaca Pty Ltd [2021] NSWCA 307
Hearing dates:	On the papers
Date of orders:	13 December 2021
Decision date:	13 December 2021
Before:	Bathurst CJ; Bell P; Payne JA
Decision:	Notice of motion dismissed with costs
Catchwords:	COSTS – application for gross sum costs order – where gross sum costs order was not sought by the applicants when an earlier application to vary the original costs orders was sought and made – application refused
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98 Federal Court Rules 1979 (Cth) Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A)
Cases Cited:	Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Eliezer v The Council of St Andrews Cathedral School (No 2) [2021] NSWCA 227 Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy trading as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 Short v Crawley (No 45) [2013] NSWSC 1541
Category:	Costs
Parties:	Shaun Edmund Wormald (First Appellant) Wirra Wirra Investments Pty Ltd as trustee for the Wormald Trust (Second Appellant) John Leonard Barrett (First Cross-Appellant) Steven Moran (Second Cross-Appellant) Maradaca Pty Ltd (First Respondent) ELB Pty Ltd (Second Respondent)
Representation:	Counsel: A d’Arville and B Yin (First and Second Respondents) Solicitors: Marque Lawyers (Appellants and Cross-Appellants) John De Mestre & Co (First and Second Respondents)
File Number(s):	2020/152628
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2020] NSWSC 440 Date of Decision: 24 April 2020 Before: Lindsay J File Number(s): 2016/56273