Dimento v Dimento & Anor (Costs) [2007] NSWSC 1233

New South Wales Supreme Court

CITATION : Dimento v Dimento & Anor (Costs) [2007] NSWSC 1233

HEARING DATE(S) : 23 October 2007 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 23 October 2007

DECISION : No order as to costs

CATCHWORDS : COSTS – where each party has measure of success – where plaintiff fails on major issue but succeeds in minor way on argument not advanced by him – where on analysis of issues costs entitlements of parties are approximately evenly balanced

LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules 2005, r 42.1

CASES CITED : Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111

Giacomo Dimento (plaintiff) PARTIES : Guiseppe Dimento (first defendant) Francesco Dimento (second defendant)

FILE NUMBER(S) : SC 4545/05

D M Flaherty (plaintiff) COUNSEL : M R Pesman (first defendant) J E Rowe (second defendant)

Mullick & Associates (plaintiff) SOLICITORS : Lloyd & Lloyd (first defendant) John Carmody & Co (second defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

BRERETON J

Tuesday, 23 October 2007

4545/05 Giacomo (Jim) Dimento v Guiseppe (Joe) Dimento & 1 Or JUDGMENT (ex tempore - costs) 1 HIS HONOUR: Although costs are in the discretion of the Court, the prima facie position is established by (NSW) Uniform Civil Procedure Rules 2005, r 42.1, which provides that if the Court makes any order as to costs, it is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. However, the general proposition that a successful party is usually entitled to its costs of the proceedings, and the "follow the event" rule, can produce difficult discretionary considerations where the proceedings involve multiple issues and a party succeeds on some issues but fails on others – particularly when an ultimately successful plaintiff fails on issues that occupied a substantial part of the proceedings. 2 As I sought to explain in Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111, although, generally speaking, the Court is reluctant to dissect costs between issues, there are circumstances – for example, where a party, by a late amendment, salvages a nominal victory from otherwise impending defeat, or where an ultimately unsuccessful defendant succeeds on an issue that occupies most of the proceedings – in which it will be appropriate to depart from that approach, and either to dissect costs between issues, or to make some other overall order reflecting the justice of the case. 3 In this case, the plaintiff sued the first defendant primarily for specific performance of a contract to transfer fishing licences and, alternatively, for damages. He joined the second defendant because he also sought orders setting aside dispositions of the fishing licences made by the first defendant to the second defendant after the proceedings were contemplated and commenced. The second defendant cross-claimed for a declaration that he or the deregistered company, Dimento Pty Limited, was the beneficial owner of the vessel, Kimbarra, which remained in the possession of the plaintiff. Ultimately, there were five main issues: