The Cleaning Doctor NSW Pty Ltd v Fonseca (No 2) [2022] NSWSC 389

Supreme Court New South Wales

Medium Neutral Citation: The Cleaning Doctor NSW Pty Ltd v Fonseca (No 2) [2022] NSWSC 389 Hearing dates: On the papers Date of orders: 5 April 2022 Decision date: 05 April 2022 Jurisdiction: Equity Before: Williams J Decision: See [25] Catchwords: COSTS – whether successful defendants should be deprived of costs order by reason of abandoning allegations of fraud in closing submissions – where allegations of fraud formed part of unclean hands defence to plaintiffs' allegations of fraudulent misappropriation – where plaintiffs failed to prove fraudulent misappropriation – where defendants' abandoned allegations did not occupy material time at trial

COSTS – whether appropriate to apportion costs between issues and reduce any costs order in favour of successful defendants by reason of their abandonment of certain issues in closing submissions COSTS – where two plaintiffs with separate claims – where some evidence relevant to both claims – whether costs order in favour of successful defendants should be made against plaintiffs jointly severally or whether separate orders should be made against each plaintiff in respect of the defendants' costs of defending that plaintiff's claim FREEZING ORDERS – whether freezing orders should continue pending unsuccessful plaintiffs' foreshadowed appeal – where plaintiffs have filed notice of intention to appeal – where plaintiffs have not filed notice of appeal, have not articulated grounds of appeal and made no submissions as to whether they have a good arguable case on appeal Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 25.15 Cases Cited: Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2021] NSWSC 1374 Re Baum; ex parte Cooper (1878) 10 Ch D 313 Tomasetti v Brailey [2012] NSWCA 6 Texts Cited: G E Dal Pont, Law of Costs (4th ed, 2018) Category: Costs Parties: The Cleaning Doctor NSW Pty Ltd (ACN 139 483 926) (First Plaintiff) Ali Itawi (Second Plaintiff) Jeffrey Fonseca (First Defendant) Orlando Fonseca (Second Defendant) Vilma Fonseca (Third Defendant) Joselyn Fonseca (Fourth Defendant) 7/49-51 Stanley Street Pty Ltd (Fifth Defendant) 147 Holt Road Pty Ltd (ACN 602 121 404) (Sixth Defendant) Representation: Counsel: Mr M Ashhurst SC with Mr Q Rares (Plaintiffs) Ms M Antunes, solicitor (Defendants)