L.N.E. Cunneen & Co Pty Ltd v Allan Vincent Blackburn [2017] NSWSC 677

Supreme Court New South Wales

Medium Neutral Citation: L.N.E. Cunneen & Co Pty Ltd v Allan Vincent Blackburn [2017] NSWSC 677 Hearing dates: 29/05/17 Date of orders: 30 May 0017 Decision date: 29 May 2017 Jurisdiction: Equity - Commercial List Before: McDougall J Decision: Plaintiff to pay the defendants' costs of the proceedings apart from the cross-claim. Cross-claimants to pay the cross-defendant's costs of the cross-claim. Costs to be set off. Catchwords: COSTS – whether costs should follow event – whether costs should be apportioned – no question of principle Legislation Cited: Contracts Review Act 1980 (NSW) Category: Costs Parties: L. N. E. Cunneen & Co Pty Ltd (Plaintiff) Allan Vincent Blackburn (First Defendant) Carmel Anne Blackburn (Second Defendant) Representation: Counsel:

D A Smallbone (Plaintiff) A P Cheshire SC (Defendants)

Solicitors:

Anderson Lawyers (Plaintiff) Martin Place Lawyers (Defendants) File Number(s): 2015/148497

Judgment (EX TEMPORE – revised 29 may 2017) 1. HIS HONOUR: The plaintiff claimed that it agreed to provide accounting and business advisory services to the defendants, and that it was to be remunerated by a 10% share of profit and a 10% share of the growth in capital value of the defendants' business assets. It was the plaintiff's case that those entitlements continued even after termination of the agreement. 2. In reasons given on 16 February 2017 ([2017] NSWSC 73), I concluded that the plaintiff in substance failed. There was some question as to whether the plaintiff had been paid its full share of profits up until the date of termination of the agreement that, I found, had been made. Accordingly I reserved to the plaintiff an opportunity to seek a reference out on that limited issue. 3. The plaintiff did want to pursue the question of a reference. However, in the event, there has been no report. The parties have agreed on a payment that is to be made for profit share up until the date of termination of the agreement. I shall make those orders in due course. 4. The remaining question is one of costs. At [152] of my reasons, having allowed for the "limited opportunity" for there to be a reference as to any unpaid profit share, I concluded that the proceedings should be dismissed with costs. 5. In the usual way, the parties have sought to reargue history by suggesting that there were issues that were advanced and not pressed, and that some apportionment of costs ought be made to reflect those and other matters. None of this was flagged when the matter was listed for directions today, and accordingly I have had no opportunity to do anything other than consider, briefly, the reasons that I gave more than three months ago. It seems to me that, at a time when my mind was fully cognisant of the legal and factual issues, I had formed a view that the proceedings should be dismissed with costs subject to the issue of any reference. Leaving aside for the moment the question of the reference and the question of the defendants' cross-claim, I feel disinclined to attempt to go through all the material with a view to seeing whether I was right in expressing that view when I did. 6. The outcome of the reference is that the defendants have agreed they owe $20,000 for unpaid profit share. They have agreed to pay that amount. That can hardly be said to represent, in the scheme of things, success; let alone success sufficient to justify the making of a costs order in favour of the plaintiff. Mr Smallbone of Counsel, who appeared for the plaintiff both at the hearing and today, did not suggest otherwise. 7. That leaves the question of the cross-claim. Essentially, it sought relief under the Contracts Review Act 1980 (NSW). On the view of the contract to which I have come, that did not arise. However, I did express the view that there was no element of procedural injustice in the way that the bargain between the parties had been formed, and that this would be so even if the bargain were that for which the plaintiff contended, rather than that which I found had been made. 8. Mr Cheshire of Senior Counsel, who appeared for the defendants both at the hearing and today, suggested that the cross-claim was really defensive. That may be so; but it seemed and still seems to me that there was no basis shown for relief under the Act. 9. I accept that there may not be any great element of costs attached to the cross-claim, but that does not seem to me to be a reason for declining to award them. 10. I make the following orders: 1. Orders 1 and 2 in accordance with the short minutes of order initialled by me and dated today's date. 2. Order the plaintiff to pay the defendants' costs of the proceedings apart from the cross-claim. 3. Order the cross-claimants to pay the cross-defendant's costs of the cross-claim. 4. Order that costs so payable be set off. 5. Exhibits to be handed back to the parties.