Trajkovski v R K Findlay Pty Ltd (No 2) [2008] NSWSC 773

Trajkovski v R K Findlay Pty Ltd (No 2) [2008] NSWSC 773

The plaintiff was the successful party on the total failure of consideration claim, but much of the hearing and evidence concerned issues unrelated to that success, including damages and the alleged Porsche importation plan on which the plaintiff failed. Because there was some relationship between the successful and unsuccessful issues, the defendants should not receive their costs; however, the plaintiff's costs should be limited to reflect that not all evidence and hearing time were directly referable to the successful issue. The appropriate order was that the defendants pay 25 per cent of the plaintiff's costs of the proceedings.

Jurisdiction
Australia
Judgment Date
29 July 2008
Procedural Posture
Costs; Consequential Orders / After Trial Judgment, on the Question of Costs
Outcome
Defendants ordered to pay 25 per cent of the plaintiff's costs of the proceedings.
Legal Topics
['costs Following the Event' 'apportionment of Costs' 'total Failure of Consideration' 'unsuccessful Damages Claim']
['civil Procedure' 'costs' 'contract'] ['costs Following the Event' 'apportionment of Costs' 'total Failure of Consideration' 'unsuccessful Damages Claim']

Case Brief

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Procedural Posture

Costs; Consequential Orders / After Trial Judgment, on the Question of Costs

Legal Issues

  1. 1 ['Whether the plaintiff, having succeeded only on a claim for recovery of $10,000 and interest on a total failure of consideration after failing on a significant damages claim, should receive costs of the whole proceedings or only a proportionate part.' 'Whether the issues on which the plaintiff failed were dominant or separable so as to justify limiting or reallocating costs.']

Ratio Decidendi

The plaintiff was the successful party on the total failure of consideration claim, but much of the hearing and evidence concerned issues unrelated to that success, including damages and the alleged Porsche importation plan on which the plaintiff failed. Because there was some relationship between the successful and unsuccessful issues, the defendants should not receive their costs; however, the plaintiff's costs should be limited to reflect that not all evidence and hearing time were directly referable to the successful issue. The appropriate order was that the defendants pay 25 per cent of the plaintiff's costs of the proceedings.

Court Disposition

Defendants ordered to pay 25 per cent of the plaintiff's costs of the proceedings.

Orders

  • ["The defendants are to pay 25 per cent of the plaintiff's costs of the proceedings."]