Franpina Developments Pty Ltd v John Anthony Arena Pty Ltd [2022] NSWSC 57

Franpina Developments Pty Ltd v John Anthony Arena Pty Ltd [2022] NSWSC 57

The consent order setting aside the Deed resolved the fundamental issue in the proceedings in favour of Franpina and Mrs Arena and gave them relief tantamount to complete success. JAA and Dr Arena's change of position and consent to the order were, in substance, a capitulation or surrender rather than a genuine compromise or consequence of a supervening event. Franpina and Mrs Arena were therefore successful parties for costs purposes. However, because it was not unreasonable for JAA and Dr Arena to defend properly contestable proceedings, and their belated and not fully explained change of position did not amount to relevantly delinquent conduct, costs were awarded only on the ordinary...

Jurisdiction
Australia
Judgment Date
04 February 2022
Procedural Posture
Costs in Equity Proceedings Concerning Validity and Enforceability of a Put and Call Option Deed / Determination on the Papers After Proceedings Were Otherwise Brought to an End by Consent Orders
Outcome
First and second defendants ordered to pay the costs of the plaintiff and the third defendant/cross-claimant on the ordinary basis.
Legal Topics
['costs After Proceedings Determined Without Hearing on the Merits' 'consent Orders' 'capitulation or Surrender' 'ordinary Basis Costs' 'indemnity Costs' 'validity and Enforceability of Deed' 'contracts Review Act 1980 (nsw)']
['costs' 'equity' 'contracts'] ['costs After Proceedings Determined Without Hearing on the Merits' 'consent Orders' 'capitulation or Surrender' 'ordinary Basis Costs' 'indemnity Costs' 'validity and Enforceability of Deed' 'contracts Review Act 1980 (nsw)']

Case Brief

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Procedural Posture

Costs in Equity Proceedings Concerning Validity and Enforceability of a Put and Call Option Deed / Determination on the Papers After Proceedings Were Otherwise Brought to an End by Consent Orders

Legal Issues

  1. 1 ['Whether JAA and Dr Arena effectively capitulated or surrendered to the claims by consenting to an order setting aside the Deed after litigating for some time.' 'Whether Franpina and Mrs Arena should receive costs where the proceedings ended without a hearing on the merits.' 'Whether any costs order should be on the ordinary basis or indemnity basis.']

Ratio Decidendi

The consent order setting aside the Deed resolved the fundamental issue in the proceedings in favour of Franpina and Mrs Arena and gave them relief tantamount to complete success. JAA and Dr Arena's change of position and consent to the order were, in substance, a capitulation or surrender rather than a genuine compromise or consequence of a supervening event. Franpina and Mrs Arena were therefore successful parties for costs purposes. However, because it was not unreasonable for JAA and Dr Arena to defend properly contestable proceedings, and their belated and not fully explained change of position did not amount to relevantly delinquent conduct, costs were awarded only on the ordinary...

Court Disposition

First and second defendants ordered to pay the costs of the plaintiff and the third defendant/cross-claimant on the ordinary basis.

Orders

  • ["John Anthony Arena Pty Ltd and John Anthony Arena pay Franpina Developments Pty Ltd's costs of the proceedings on the ordinary basis." "John Anthony Arena Pty Ltd and John Anthony Arena pay Giuseppa Arena's costs of the proceedings on the ordinary basis."]