Bonanno v Finamore (No 2) [2022] NSWSC 641

Bonanno v Finamore (No 2) [2022] NSWSC 641

The Agreed Facts, particularly the words "up to the date of the hearing (or beyond)", fixed $75,000 as the all-up amount for the plaintiff's unpaid one-third share of net income, so the plaintiff was not entitled to seek any further accounting or additional net profits. On costs, although the defendants succeeded on...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
23 May 2022
Procedural Posture
Equity Proceedings; Costs Determination / On the Papers After Judgment, Determining Outstanding Issues Concerning the Agreed Facts and Costs
Outcome
Plaintiff's claim for additional net profits rejected; plaintiff ordered to pay 60% of the defendants' costs on the ordinary basis, without affecting prior costs orders.
Legal Topics
['issue Estoppel' 'agreed Facts Under Evidence Act 1995 (nsw), S 191' 'costs Follow the Event' 'costs Discretion' 'net Profits Accounting' 'ordinary Basis Costs']
['costs' 'evidence' 'estoppel' 'equity' 'civil Procedure'] ['issue Estoppel' 'agreed Facts Under Evidence Act 1995 (nsw), S 191' 'costs Follow the Event' 'costs Discretion' 'net Profits Accounting' 'ordinary Basis Costs']

Source-derived case record

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Procedural Posture

Equity Proceedings; Costs Determination / On the Papers After Judgment, Determining Outstanding Issues Concerning the Agreed Facts and Costs

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to a further accounting or additional net profits beyond the agreed sum of $75,000.' "Whether the Agreed Facts under Evidence Act 1995 (NSW), s 191 fixed the all-up amount payable for the plaintiff's one-third share of net income up to the date of the hearing or beyond." "What costs order should be made after judgment, given the parties' mixed success and prior costs orders."]

Ratio Decidendi

The Agreed Facts, particularly the words "up to the date of the hearing (or beyond)", fixed $75,000 as the all-up amount for the plaintiff's unpaid one-third share of net income, so the plaintiff was not entitled to seek any further accounting or additional net profits. On costs, although the defendants succeeded on the most significant proprietary-interest issue, the plaintiff achieved substantial success on other issues, including entitlement to payment under the Deed; a holistic exercise of the costs discretion therefore justified ordering the plaintiff to pay only 60% of the defendants' costs on the ordinary basis, without disturbing prior costs orders.

Court Disposition

Plaintiff's claim for additional net profits rejected; plaintiff ordered to pay 60% of the defendants' costs on the ordinary basis, without affecting prior costs orders.

Orders

  • ["Without affecting the validity of any prior costs orders made by the Court in these proceedings, order the plaintiff to pay 60% of the defendants' costs of the proceedings on the ordinary basis."]