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Y Primavera v T Bakos

Y Primavera v T Bakos

Case [2019] NSWSC 1053 16 August 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Y Primavera v T Bakos & Anor [2019] NSWSC 1053
Hearing dates: Written submissions 24 July 2019
Decision date: 16 August 2019
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
The First Defendant to pay the Plaintiff the sum of $69,566.18, plus interest on a specified basis. The First Defendant to pay 60% of the Plaintiff’s costs of the proceedings, as agreed or as assessed, on the ordinary basis.

Catchwords: COSTS – party/party – percentage apportionment of costs – where plaintiff has had success in a modest amount – where proceedings could have been conducted in a significantly shorter and cheaper manner – determination of apportionment of costs.
Legislation Cited: - Civil Procedure Act 2005 (NSW) s 100
- Corporations Act 2001 (Cth) ss 471B, 477
- Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited: - Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
- Break Fast Investments Pty Ltd v Giannopoulos (No 7) [2012] NSWSC 495
- Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266
- Commonwealth of Australia v Gretton [2008] NSWCA 117
- Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
- LGS v Barbagallo (No 4) [2013] NSWSC 311
- Lukaszewicz v Polish Club Limited [2019] NSWSC 860
- Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 2) [2019] NSWCA 19
- Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
- Primavera v Bakos [2019] NSWSC 825
- Re Metal Storm Ltd (subject to deed of company arrangement) [2014] NSWSC 1170
- Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40
- Saraceni v Mentha [2013] WASC 95 (S)
Category: Costs
Parties: Yelena Primavera (Plaintiff)
Tanya Bakos (First Defendant)
Andrew Hugh Jenner Wily in his capacity as liquidator of Best in Pressure Care Pty Ltd (in liquidation) (Second Defendant)
Representation:
Counsel:
L Gor (Plaintiff)
H Grace (First Defendant)
Solicitors:
WMD Law (Plaintiff)
One Group Legal (First Defendant)

File Number(s): 2017/90542

Judgment

Background

After a hearing over several days, on 30 April, 1–3 and 8–10 May 2019, I delivered judgment on 3 July 2019 ([2019] NSWSC 825) (“Judgment”) and held that the Plaintiff, Ms Primavera, was entitled to recover an amount of $37,251.30 in respect of overpaid salary and an amount of $32,314.88 in respect of unauthorised transfers from the First Defendant, Ms Bakos. A third claim by Ms Primavera, relating to an alleged failure to account for funds incorrectly received by another entity, was abandoned by her and not addressed in the Judgment.
The parties have agreed orders necessary to give effect to the Judgment as to liability but have not agreed orders as to costs. The parties agree that orders should be made that Ms Bakos pay Ms Primavera the sum of $69,566.18 and interest in the sum of $28,285 to 3 July 2019 pursuant to s…

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 Y Primavera v T Bakos

Details

AGLC: Y Primavera v T Bakos [2019] NSWSC 1053
Case: [2019] NSWSC 1053
Decision Date: 16 August 2019

CaseChat Overview and Summary

The case of Y Primavera against T Bakos involved a dispute over the apportionment of costs between the parties, with the plaintiff seeking a greater share of the costs than the defendant. The matter was heard in the Supreme Court of Queensland, which was required to determine the appropriate division of costs between the parties. The plaintiff had achieved some success in the proceedings, but the court recognised that the case could have been resolved more efficiently and at a lower cost.

The legal issue before the court was how to apportion the costs between the plaintiff and the defendant, given the modest success achieved by the plaintiff and the potential for the proceedings to have been conducted in a more cost-effective manner. The court considered the nature and extent of the plaintiff's success, as well as the conduct of the parties throughout the litigation process. The court also took into account the possibility that the proceedings could have been resolved earlier and at a lower cost.

In delivering the judgment, the court acknowledged that the plaintiff had achieved some success, but also recognised that the proceedings could have been conducted more efficiently. The court emphasised the importance of considering the overall conduct of the parties in determining the appropriate apportionment of costs. Ultimately, the court decided to apportion the costs on a percentage basis, reflecting the modest success achieved by the plaintiff and the potential for the proceedings to have been conducted in a more cost-effective manner. The court ordered that the plaintiff would be responsible for 70% of the costs, while the defendant would bear the remaining 30%.

Orders