Loureiro v Mac Aus Unit Pty Ltd (No 3) [2022] NSWSC 358

Loureiro v Mac Aus Unit Pty Ltd (No 3) [2022] NSWSC 358

An issues-based apportionment was inappropriate because the dominant issue was the money claims and the factual substratum was common to successful and unsuccessful claims, while the failed equitable claims against Mac Aus and David occupied little time in evidence and argument. The rule of thumb for jointly represented defendants did not apply because the case was not straightforward and the successful defendants had separate factual positions. Antonio should bear 70 per cent of the plaintiffs' costs, subject to specified exclusions, because he denied or did not admit the money claims, ran a limitation defence and made concessions only in closing submissions, but his conduct did not...

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Costs Judgment in Supreme Court Common Law Proceedings After Judgment on Money Claims and Equitable Relief / Costs Reserved After Principal Judgment and Determined on the Papers
Outcome
Costs orders made reflecting mixed success.
Legal Topics
['costs Follow the Event' 'mixed Success Against Multiple Parties' 'issue Based Costs Orders' 'jointly Represented Defendants' 'apportionment of Costs']
['costs' 'civil Procedure'] ['costs Follow the Event' 'mixed Success Against Multiple Parties' 'issue Based Costs Orders' 'jointly Represented Defendants' 'apportionment of Costs']

Case Brief

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Procedural Posture

Costs Judgment in Supreme Court Common Law Proceedings After Judgment on Money Claims and Equitable Relief / Costs Reserved After Principal Judgment and Determined on the Papers

Legal Issues

  1. 1 ["How the plaintiffs' mixed success against multiple defendants should be reflected in costs orders." 'Whether the usual rule that costs follow the event should apply or some other order should be made.' 'Whether costs should be awarded on an issues basis or apportioned by a rule of thumb for jointly represented defendants.' 'Whether successful defendants should be denied costs or have costs ordered against them because of alleged misconduct.' "Whether Antonio should pay all or only part of the plaintiffs' costs and whether any exclusions should apply."]

Ratio Decidendi

An issues-based apportionment was inappropriate because the dominant issue was the money claims and the factual substratum was common to successful and unsuccessful claims, while the failed equitable claims against Mac Aus and David occupied little time in evidence and argument. The rule of thumb for jointly represented defendants did not apply because the case was not straightforward and the successful defendants had separate factual positions. Antonio should bear 70 per cent of the plaintiffs' costs, subject to specified exclusions, because he denied or did not admit the money claims, ran a limitation defence and made concessions only in closing submissions, but his conduct did not...

Court Disposition

Costs orders made reflecting mixed success.

Orders

  • ["The second defendant pay 70 per cent of the first, second and third plaintiffs' costs of the proceedings excluding the plaintiffs' costs of the directions hearing on 22 October 2020 and the plaintiffs' costs to prepare and tender the report of Chris Katehos and Cecelia Tang dated 25 January 2022." "The plaintiffs...