Booth v Cerreto (No 2) [2024] NSWSC 207

Booth v Cerreto (No 2) [2024] NSWSC 207

Because the principal judgment rejected the contractual basis for preventing the defendants from borrowing against the Properties for non-Venture purposes, the surplus should not be calculated by the plaintiffs' proposed method; instead, contributions are to be repaid or pro-rated and any surplus equally divided. On costs, each side had material success and failure across the contract claim, dismissed cross-claim, and accounting issues, and more particular costs orders would be disproportionate and contrary to the overriding purpose given the delay, animosity, and likely disputes on assessment. The just order was therefore no order as to costs.

Jurisdiction
Australia
Judgment Date
28 February 2024
Procedural Posture
Equity Costs and Accounting Dispute / Ex Tempore Judgment Resolving Remaining Disputes After Principal Judgment
Outcome
No order as to costs; accounting orders to be made in the form proposed by the First to Fourth Defendants for repayment or pro-rating of contributions and equal division of any surplus.
Legal Topics
['party/party Costs' 'exceptions to Costs Following the Event' 'accounting Between Joint Venture Parties' 'judicial Sale' 'dismissed Cross Claim' 'overriding Purpose']
['costs' 'equity' 'civil Procedure'] ['party/party Costs' 'exceptions to Costs Following the Event' 'accounting Between Joint Venture Parties' 'judicial Sale' 'dismissed Cross Claim' 'overriding Purpose']

Case Brief

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Procedural Posture

Equity Costs and Accounting Dispute / Ex Tempore Judgment Resolving Remaining Disputes After Principal Judgment

Legal Issues

  1. 1 ["Whether the Court should make the plaintiffs' proposed accounting order for calculation of any surplus after payment of contributions or the First to Fourth Defendants' proposed order distributing any remaining surplus equally after repayment or pro-rating of contributions." "Whether the defendants' borrowings secured over the Properties for purposes unrelated to the Venture should affect calculation of any surplus." "What costs order should be made where the defendants' cross-claim was dismissed, the plaintiffs failed on their contract damages claim, and each side succeeded on some accounting issues."]

Ratio Decidendi

Because the principal judgment rejected the contractual basis for preventing the defendants from borrowing against the Properties for non-Venture purposes, the surplus should not be calculated by the plaintiffs' proposed method; instead, contributions are to be repaid or pro-rated and any surplus equally divided. On costs, each side had material success and failure across the contract claim, dismissed cross-claim, and accounting issues, and more particular costs orders would be disproportionate and contrary to the overriding purpose given the delay, animosity, and likely disputes on assessment. The just order was therefore no order as to costs.

Court Disposition

No order as to costs; accounting orders to be made in the form proposed by the First to Fourth Defendants for repayment or pro-rating of contributions and equal division of any surplus.

Orders

  • ["The Court will not make order 4(f) as proposed in Mr Kidd SC's draft." 'The Court will make orders providing that fifth, to the Plaintiffs the amount of $956,863 and to the First to Fourth Defendants the amount of $1,282,725, representing their respective contributions to the joint venture, or pro-rated amounts if...