Luigi Iacullo v Remly Pty Limited and Dominic Iacullo and Lillian Iacullo (No 2) [2012] NSWSC 273

Supreme Court New South Wales

Medium Neutral Citation: Luigi Iacullo v Remly Pty Limited and Dominic Iacullo and Lillian Iacullo (No 2) [2012] NSWSC 273 Hearing dates: 28 November to 2 December 2011, 6 to 9 December 2011 Decision date: 26 March 2012 Jurisdiction: Equity Division Before: Black J Decision: Plaintiff's claim dismissed. Plaintiff to pay Defendants' costs of Plaintiff's claim. Costs of Plaintiff's claim assessable forthwith. Costs of Second Cross-Claim assessable forthwith. Detailed orders made as to assessment of further costs. Orders as to caveats and injunctions made in the proceeding dissolved. Catchwords: COSTS - Orders to be made consequential upon judgment in proceedings. Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW) Pt 20 Div 3, r 42.7(2) Category: Costs Parties: Luigi Iacullo (Plaintiff) Remly Pty Ltd (First Defendant) Dominic Iacullo (Second Defendant) Lillian Iacullo (Third Defendant) Representation: Counsel: G. A. Moore (Plaintiff) D. A. Smallbone (Defendants) Solicitors: Kreisson Legal (Plaintiff) Allsop Glover (Defendants) File Number(s): 07/257623

Judgment 1On 7 March 2012 I delivered judgment in three proceedings between the Plaintiff, Mr Luigi Iacullo (to whom I will refer, without disrespect, as "Luigi") on the one hand and the Defendants, Mr Dominic Iacullo and Mrs Lillian Iacullo (to whom I will refer, without disrespect, as "Dominic" and "Lillian") on the other. 2In this proceeding ("Remly claim") I noted that, on the basis of the findings which I had reached, the proper orders would ordinarily be that the proceedings should be dismissed and Luigi should pay Dominic and Lillian's costs of the proceedings. However, I noted that Dominic and Lillian had brought a Cross-Claim against Luigi and third parties which was wider than the issues raised by the Statement of Claim, a reference of aspects of that Cross-Claim to a referee under Pt 20 Div 3 of the Uniform Civil Procedure Rules 2005 (NSW) was on foot and other aspects of that Cross-Claim may still have to be determined by the Court. I indicated that I should therefore hear the parties as to the form of orders which should be made having regard to the existence of the Cross-Claim. 3The parties have agreed that several orders should be made consequential upon my judgment. However, Luigi contends that the assessment of Dominic and Lillian's costs of the Remly claim should be stayed until the determination of the First Cross-Claim brought by them. He also contends that his costs of the Second Cross-Claim ordered by Ward J should continue to be stayed until the determination of the First Cross-Claim. 4Luigi relies on the fact that Ward J had previously stayed her costs order in his favour when her Honour dismissed Dominic and Lillian's Second Cross-Claim seeking to enforce what they contended was an earlier settlement for the proceedings. However, it seems to me that position is distinguishable where the Second Cross-Claim was directed to, inter alia, whether the Remly claim could proceed to a hearing and necessarily anterior to the determination of that claim. Luigi also refers to the observation in my reasons for judgment that the issues in the First Cross-Claim are wider than those raised by his claim and contends that, in those circumstances, it is inappropriate that Dominic and Lillian's costs in the Remly claim be assessed prior to the determination of all matters in the proceedings. Luigi also points to a possible need to apportion costs as between his claim on the one hand and Dominic and Lillian's First Cross-Claim on the other. 5On the other hand, Dominic and Lillian contend that the costs of Luigi's claim and of the Second Cross-Claim should be assessed forthwith. They point out that Luigi's claim was separated from the First Cross-Claim brought by them by the order made by Bergin CJ in Eq on 19 May 2011 that the Cross-Claim in the proceedings be determined separately from Luigi's claim, that proceedings on Luigi's claim are now complete and costs are therefore assessable. Alternatively, Dominic and Lillian contend that the case is a proper case for an order under UCPR r 42.7(2) that the costs of Luigi's claim be assessable forthwith, and note that power may be exercised where a decision relates to the determination of a discrete or self-contained question and there is likely to be a delay in the conclusion of the proceedings. They acknowledge that the separate costs of the First Cross-Claim should be excluded from the costs ordered in the Remly proceedings and that liberty should be reserved to the parties or the costs assessor to apply for directions in respect of any difficulty in apportioning the costs. 6I am satisfied that there is a substantial degree of separation between the issues raised by Luigi's claim, which related to the ownership of two properties and the assets and/or shares in Remly Pty Ltd, and the issues raised by Dominic and Lillian's First Cross-Claim which relates to dealings between them, Luigi and Mr Michael Murr and companies associated with him in respect of a range of other unit trusts. I can see no injustice to Luigi in making an order that the costs of the Plaintiff's claim should be assessable separately, where such an order reflects the position that would prevail if his claim and Dominic and Lillian's First Cross-Claim had also been brought as separate proceedings. In substance, Luigi's claim and the First Cross-Claim are now proceeding in that manner by reason of the orders made by Bergin CJ in Eq on 19 May 2011. 7I will make the additional order proposed by Dominic and Lillian confirming that the costs of the First Cross-Claim are to be excluded from the costs ordered by the Court, for more abundant caution. Dominic and Lillian accept that the corresponding assessment of costs in favour of Luigi in the Second Cross-Claim should also not be further deferred. I do not propose to make the additional order proposed by Dominic and Lillian reserving liberty to apply, because matters of costs assessment are properly determined by the costs assessor and there should be no occasion for restoring those matters before the Court. 8Accordingly, I make the following orders: 1. The Plaintiff's claim is dismissed. 2. The Plaintiff to pay the Defendants' costs of the Plaintiff's claim. 3. Order that the costs of the Plaintiff's claim be assessable forthwith. 4. Order that the costs of the Second Cross-Claim be assessable forthwith. 5. Direct that on assessment the separate costs of the First Cross-Claim are to be excluded from the costs ordered above. 6. The Order made on 14 November 2007 extending caveat AD 481717 until further order be dissolved. 7. The injunction made until further Order by order 2 of the orders made on 14 November 2007 and subsequently varied on 4 August 2009 be dissolved. 8. Any motion by the Defendants to proceed with an inquiry as to damages under the Plaintiff's usual undertaking as to damages in respect of the said extension of the said caveat or under the said interlocutory injunction be filed and served within 28 days. 9Paragraphs 1-2 and 6-8 of these orders reflect the parties' agreement as to what followed from my judgment and paragraphs 3-5 of these orders reflect the matters which I have determined above.