Eastlings Pty Ltd v Calidu Import Export Pty Ltd (No 3) [2021] NSWSC 466

Eastlings Pty Ltd v Calidu Import Export Pty Ltd (No 3) [2021] NSWSC 466

Where the proceedings involve separable issues or claims, costs should generally follow the event for each claim; thus, the plaintiff is entitled to costs of the successful Breach of Covenant claims, and the defendants to costs of the successful defence of the Misleading or Deceptive Conduct claims. Proportionality and the particular circumstances do not warrant any further apportionment or blended order beyond claim separation.

Parties
Plaintiff: Eastlings Pty Ltd; First Defendant: Calidu Import Export Pty Ltd; Second Defendant: Joseph Merlo; Third Defendant: Grace Christine Merlo; Fourth Defendant: Calidu Pty Ltd
Jurisdiction
Australia
Judgment Date
05 May 2021
Procedural Posture
Costs Application, Equity Proceedings / Post Judgment, Costs Determination
Outcome
Costs orders apportioned according to claim outcome: plaintiff to recover costs of Breach of Covenant claims; defendants to recover costs of Misleading or Deceptive Conduct claims; liberty to apply as to security for costs money held.
Legal Topics
Costs, Party/party Costs, General Rule That Costs Follow the Event, Apportionment of Costs, Mixed Success in Proceedings
Equity Civil Procedure Costs Party/party Costs General Rule That Costs Follow the Event Apportionment of Costs Mixed Success in Proceedings

Case Brief

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Parties

Eastlings Pty Ltd

Plaintiff

Calidu Import Export Pty Ltd

First Defendant

Joseph Merlo

Second Defendant

Grace Christine Merlo

Third Defendant

Calidu Pty Ltd

Fourth Defendant

Procedural Posture

Costs Application, Equity Proceedings / Post Judgment, Costs Determination

Legal Issues

  1. 1 Whether costs should follow the event when there is mixed success in severable claims (Breach of Covenant and Misleading or Deceptive Conduct)
  2. 2 Whether any apportionment or adjustment of costs is warranted given outcomes and proportionality
  3. 3 Whether commencement and continuation in the Supreme Court was warranted for the claims

Ratio Decidendi

Where the proceedings involve separable issues or claims, costs should generally follow the event for each claim; thus, the plaintiff is entitled to costs of the successful Breach of Covenant claims, and the defendants to costs of the successful defence of the Misleading or Deceptive Conduct claims. Proportionality and the particular circumstances do not warrant any further apportionment or blended order beyond claim separation.

Court Disposition

Costs orders apportioned according to claim outcome: plaintiff to recover costs of Breach of Covenant claims; defendants to recover costs of Misleading or Deceptive Conduct claims; liberty to apply as to security for costs money held.

Orders

  • Order the second and third defendants to pay the plaintiff's costs of the Breach of Covenant claims.
  • Order the plaintiff to pay the second to fourth defendants' costs of the Misleading or Deceptive Conduct claims.