Ashton v Monteleone (No 2) [2010] NSWSC 745

Ashton v Monteleone (No 2) [2010] NSWSC 745

Although the plaintiffs failed to obtain GST declarations after the Deputy Commissioner ruled that the supply was not a taxable supply, they succeeded on the major issue of rectification and the cross-claim was dismissed. Their partial and pyrrhic success justified a discount from full costs, but not denial of costs. Mr Monteleone was appropriately joined because he lodged a caveat claiming an equitable interest and participated in the cross-claim.

Jurisdiction
Australia
Judgment Date
02 July 2010
Procedural Posture
Costs Application Following Proceedings for Rectification of a Contract for Sale and GST Related Declarations / Ex Tempore Judgment After Principal Judgment and Private Indirect Tax Ruling
Outcome
Defendants ordered to pay 80% of the plaintiffs' costs of the claim; cross-claimants ordered to pay the cross-defendants' costs of the cross-claim.
Legal Topics
['costs Following the Event' 'contract Rectification' 'gst Taxable Supply' 'private Indirect Tax Ruling' 'joinder of Parties']
['civil Procedure' 'costs' 'contract Law' 'taxation'] ['costs Following the Event' 'contract Rectification' 'gst Taxable Supply' 'private Indirect Tax Ruling' 'joinder of Parties']

Case Brief

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Procedural Posture

Costs Application Following Proceedings for Rectification of a Contract for Sale and GST Related Declarations / Ex Tempore Judgment After Principal Judgment and Private Indirect Tax Ruling

Legal Issues

  1. 1 ['Whether costs of the cross-claim should follow the event after the cross-claim was dismissed.' "Whether the plaintiffs' costs of the claim should be discounted because the plaintiffs were not entirely successful and their rectification victory was pyrrhic after a ruling that no GST was payable." 'Whether Joseph Monteleone was a necessary or appropriate party against whom a costs order could be made.']

Ratio Decidendi

Although the plaintiffs failed to obtain GST declarations after the Deputy Commissioner ruled that the supply was not a taxable supply, they succeeded on the major issue of rectification and the cross-claim was dismissed. Their partial and pyrrhic success justified a discount from full costs, but not denial of costs. Mr Monteleone was appropriately joined because he lodged a caveat claiming an equitable interest and participated in the cross-claim.

Court Disposition

Defendants ordered to pay 80% of the plaintiffs' costs of the claim; cross-claimants ordered to pay the cross-defendants' costs of the cross-claim.

Orders

  • ["The cross-claimants should pay the cross-defendants' costs of the cross-claim." "The defendants are to pay 80% of the plaintiffs' costs of the claim."]