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

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

Defendants are entitled to their costs as successful parties; abandonment of some pleaded issues (including fraud) does not justify depriving them of costs or apportioning costs, as these issues did not take up material trial time or dominate the trial. Costs common to both plaintiffs to be paid jointly and severally; otherwise, each plaintiff to pay respective costs. Continuation of freezing and controlled monies orders only for limited period post-judgment and if appeal is filed.

Parties
First Plaintiff: The Cleaning Doctor NSW Pty Ltd; Second Plaintiff: Ali Itawi; First Defendant: Jeffrey Fonseca; Second Defendant: Orlando Fonseca; Third Defendant: Vilma Fonseca; Fourth Defendant: Joselyn Fonseca; Fifth Defendant: 7/49-51 Stanley Street Pty Ltd; Sixth Defendant: 147 Holt Road Pty Ltd
Jurisdiction
Australia
Judgment Date
05 April 2022
Procedural Posture
Costs and Post Trial Remedies / Post Judgment Application (costs and Orders)
Outcome
Plaintiffs ordered to pay defendants' costs as specified; freezing and related orders discharged subject to temporary stay pending possible appeal; directions made for further applications and payments.
Legal Topics
Costs, Freezing Orders, Interim Injunctions, Compensation for Undertaking as to Damages
Equity Costs Freezing Orders Interim Injunctions Compensation for Undertaking as to Damages

Case Brief

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Parties

The Cleaning Doctor NSW Pty Ltd

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

Sixth Defendant

Procedural Posture

Costs and Post Trial Remedies / Post Judgment Application (costs and Orders)

Legal Issues

  1. 1 Whether successful defendants should be deprived of costs order due to abandoning allegations of fraud
  2. 2 Whether to apportion costs due to abandonment of certain issues by defendants
  3. 3 Whether costs order should be made against plaintiffs jointly and severally or separately

Ratio Decidendi

Defendants are entitled to their costs as successful parties; abandonment of some pleaded issues (including fraud) does not justify depriving them of costs or apportioning costs, as these issues did not take up material trial time or dominate the trial. Costs common to both plaintiffs to be paid jointly and severally; otherwise, each plaintiff to pay respective costs. Continuation of freezing and controlled monies orders only for limited period post-judgment and if appeal is filed.

Court Disposition

Plaintiffs ordered to pay defendants' costs as specified; freezing and related orders discharged subject to temporary stay pending possible appeal; directions made for further applications and payments.

Orders

  • Order the plaintiffs (jointly and severally) to pay the defendants' costs of defending both plaintiffs' claims on the ordinary basis in such amount as may be agreed or assessed.
  • Order first plaintiff to pay defendants' costs of defending first plaintiff's claims (beyond common costs) on ordinary basis as may be agreed or assessed.