Paige v FPI Limited & Anor [2001] NSWSC 734

New South Wales Supreme Court

CITATION : Paige v FPI Limited & Anor [2001] NSWSC 734 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 19441/93 HEARING DATE(S) : 14 August 2001 JUDGMENT DATE : 14 August 2001

Peter Rankin Paige (Plt) PARTIES : Kaye Paige (Plt) FPI Limited (1st Def) Bruce McDonald (3rd Def) JUDGMENT OF : McClellan J

C P Locke (Plt) COUNSEL : C Pagent (1st Def) F Carnovale (3rd Def) David Velleley (Plt) SOLICITORS : Corrs Chambers Westgarth (1st Def) Gillis Delaney Brown (3rd Def) CATCHWORDS : COSTS DECISION : See para 17

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCLELLAN J

TUESDAY, 14 AUGUST 2001

19441/93 - PAIGE & ANOR v FPI LIMITED & ANOR

JUDGMENT - On application for costs

1 HIS HONOUR: In this matter I have found a verdict for the plaintiffs. 2 The plaintiffs seek an order for costs against the first and third defendants and a bullock order with respect to the costs of the second defendant. 3 The second defendant settled with the plaintiffs on the second day of the hearing, when the plaintiffs claim against the second defendant was dismissed and provision was made for the payment of its costs in the sum of $15,000. 4 The first and third defendants resist the bullock order and submit that the plaintiffs should be deprived of part of their costs. 5 The circumstances in which the claim arose are that the first defendant was a corporate entity, for which the third defendant worked at the time at which the relevant advice was given to the plaintiffs. That advice was ultimately the source of the verdict which the plaintiffs obtained. 6 After that advice had been given, the third defendant ceased to be employed by the first defendant and came to be employed by the second defendant. In the proceedings a claim was brought that because of a failure to provide effective ongoing advice, the second defendant was liable. 7 It seems to me, from the material which was tendered in evidence, that that claim had no prospect of success. I can understand how it was that in the preparation of the proceedings it may have been thought appropriate at least to contemplate bringing a claim against the second defendant, but there was no evidence which in my opinion could ultimately have justified the pursuit of that claim in the proceedings. 8 The claim was not induced by any conduct of either the first or third defendants and the case against the second defendant was not dependent upon, and did not necessarily involve, the first and third defendants with respect to the issues which were litigated. Nothing done by the third defendant when employed by the second defendant, was relevant to the issues litigated. 9 The claim against the second defendant was, of course, never determined on its merits. It is only possible for me to assess the position having regard to the evidence which was before the court. However, having regard to that evidence, I am of the view that I should make no further order with respect to the second defendant's costs. 10 The first and third defendants resist an order for the whole of the plaintiffs' costs. The carriage of the submissions in this respect was undertaken by counsel for the third defendant. He submitted that because the plaintiffs did not ultimately seek to sustain an allegation that the third defendant advised the investment in the luxury cruiser, they should be penalised so far as costs are concerned. He also submitted that because of the changes which occurred in the way in which the damages claim was framed, and in particular because a significant claim set forward in a report from the expert Mr Geoffrey Wall was abandoned, the plaintiff should also be deprived of a significant portion of their costs. He submitted that because the plaintiffs abandoned any suggestion of a failure by the third defendant to provide effective ongoing advice this should also be reflected in any costs order. 11 With respect to the claim in relation to the boat, it is correct that the proceedings were initially commenced upon the basis that the third defendant had advised the plaintiffs to take up the boat investment. However, that claim was abandoned early in the proceedings and it does not appear to me that the bringing of that claim contributed in any significant degree to the length of the proceedings, nor would it have occasioned any significant preparation by the defendants. 12 With respect to the claim in relation to ongoing investment advice, I am also satisfied that the abandonment of that claim did not in any degree embarrass the defendants. 13 With respect to the claim for damages, it appeared throughout the course of the proceedings, that the plaintiffs were having difficulty articulating with precision the way in which the damages claim should be framed. 14 It is true that Mr Wall provided a number of reports. One, in particular, claimed a sum which was said to reflect the financial position which the plaintiffs would have been in but for the advice given to them by the third defendant. That claim was abandoned. However, both parties found it necessary to call expert evidence in relation to the claim which was ultimately pressed and sustained. 15 I am satisfied that the defendants would not have been put to any significant additional burden by reason of the way in which the plaintiffs' claim was originally presented and the modifications which occurred to it during the course of the hearing. Certainly I am of the view that these difficulties should not be reflected in any reduction in the plaintiffs' costs. 16 It seems to me that the plaintiffs were entitled to bring the proceedings and throughout their course made concessions and modified their approach to issues in a way which facilitated the ultimate efficient disposal of them. If, by reason of the way in which the claim was originally framed, there was some additional burden imposed on the defendants, I do not consider, having regard to the course of the whole proceedings, that this should be reflected in any order which deprives the plaintiffs of any part of their costs. 17 Accordingly, I order the first and third defendants to pay the plaintiffs' costs. 18 The exhibits may be returned after twenty-eight days. ******