Bojanic v Tadic [2007] NSWSC 72

Bojanic v Tadic [2007] NSWSC 72

The statement of claim disclosed two distinct claims arising out of the same facts: deceit and/or breach of fiduciary duty against the first defendant alone, and contractual negligence against the second defendant alone. On that basis, the costs issue was not resolved by treating the proceeding as one against joint tortfeasors; the appropriate extent of recoverable costs was a matter for costs assessment, particularly because some investigation of facts concerning the first defendant may also have been necessary to mount the claim against the second defendant. The court could not accede to either notice of motion and dismissed both without costs.

Jurisdiction
Australia
Judgment Date
08 February 2007
Procedural Posture
Application for Specific Performance of an Agreement to Settle / Ex Tempore Judgment on Notices of Motion Concerning Construction of Settlement Terms as to Costs
Outcome
Both notices of motion dismissed without any order as to costs.
Legal Topics
['costs of Proceedings' 'co Defendants' 'offer of Compromise' 'construction of Settlement Agreement' 'costs Assessment']
['procedure' 'costs' 'settlement and Compromise'] ['costs of Proceedings' 'co Defendants' 'offer of Compromise' 'construction of Settlement Agreement' 'costs Assessment']

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Procedural Posture

Application for Specific Performance of an Agreement to Settle / Ex Tempore Judgment on Notices of Motion Concerning Construction of Settlement Terms as to Costs

Legal Issues

  1. 1 ['Whether the words "costs of the proceedings" in the settlement required the second defendant to pay the plaintiff\'s costs of the proceedings against both the first defendant and the second defendant.' 'Whether the court should make orders on the notices of motion where the settlement terms were ambiguous and matters of detail had not been addressed.']

Ratio Decidendi

The statement of claim disclosed two distinct claims arising out of the same facts: deceit and/or breach of fiduciary duty against the first defendant alone, and contractual negligence against the second defendant alone. On that basis, the costs issue was not resolved by treating the proceeding as one against joint tortfeasors; the appropriate extent of recoverable costs was a matter for costs assessment, particularly because some investigation of facts concerning the first defendant may also have been necessary to mount the claim against the second defendant. The court could not accede to either notice of motion and dismissed both without costs.

Court Disposition

Both notices of motion dismissed without any order as to costs.

Orders

  • ['Both notices of motion dismissed.' 'No order as to costs.']