Bonic v Pacific General Securities Ltd [2009] NSWSC 1221

Bonic v Pacific General Securities Ltd [2009] NSWSC 1221

Although the second and third defendants were prima facie entitled to costs because Mr Bonic's claims against them were dismissed, Mr Bonic succeeded on distinct and severable issues concerning the issue and construction of the debenture, warranting an impressionistic one-third reduction. He should not bear costs solely referable to Mr Heathwood's distinct claim, and recoverable costs should be limited to additional costs caused by proceedings 2215/07 that would not have been incurred in the concurrently heard 2006 proceedings.

Jurisdiction
Australia
Judgment Date
16 November 2009
Procedural Posture
Consequential Costs Orders / After Delivery of Reasons Dismissing the Plaintiffs' Claims Against the Second and Third Defendants and Giving Judgment for the First Plaintiff Against the First Defendant, With No Order as to Costs Between the First Plaintiff and First Defendant by Consent.
Outcome
The first plaintiff was ordered to pay two-thirds of the second and third defendants' costs of proceedings 2215/07, subject to exclusions and limitations.
Legal Topics
['costs Follow the Event' 'departure From General Costs Rule' 'costs on Severable Issues' 'costs Between Co Plaintiffs With Distinct Claims' 'concurrent Proceedings and Overlapping Costs']
['civil Procedure' 'costs'] ['costs Follow the Event' 'departure From General Costs Rule' 'costs on Severable Issues' 'costs Between Co Plaintiffs With Distinct Claims' 'concurrent Proceedings and Overlapping Costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Consequential Costs Orders / After Delivery of Reasons Dismissing the Plaintiffs' Claims Against the Second and Third Defendants and Giving Judgment for the First Plaintiff Against the First Defendant, With No Order as to Costs Between the First Plaintiff and First Defendant by Consent.

Legal Issues

  1. 1 ["Whether the second and third defendants, whose defence to the plaintiffs' claims succeeded, should have their costs paid by the first plaintiff." "Whether the first plaintiff's success on particular severable issues justified an adjustment to the prima facie position that costs follow the event." 'Whether the second and third defendants should be deprived of costs because of alleged conduct inducing the litigation or because evidence decisive of some issues was first given in cross-examination.' "Whether any costs order against the first plaintiff should exclude costs solely referable to the second plaintiff's distinct claim, where the second plaintiff had become bankrupt." 'Whether recoverable costs of proceedings 2215/07 should be limited to additional costs not also incurred in the concurrently heard 2006 proceedings.']

Ratio Decidendi

Although the second and third defendants were prima facie entitled to costs because Mr Bonic's claims against them were dismissed, Mr Bonic succeeded on distinct and severable issues concerning the issue and construction of the debenture, warranting an impressionistic one-third reduction. He should not bear costs solely referable to Mr Heathwood's distinct claim, and recoverable costs should be limited to additional costs caused by proceedings 2215/07 that would not have been incurred in the concurrently heard 2006 proceedings.

Court Disposition

The first plaintiff was ordered to pay two-thirds of the second and third defendants' costs of proceedings 2215/07, subject to exclusions and limitations.

Orders

  • ['In proceedings 2215/07 the first plaintiff pay two-thirds of the costs of the second and third defendants of those proceedings, not including costs solely referable to the claims of the second plaintiff.' 'On an assessment of the costs of the second and third defendants of proceedings 2215/07 payable by the first...