ACN 116 746 859 (formerly known as Palermo Seafoods Pty Ltd) v Lunapas Pty Ltd & Anor

Supreme Court of NSW|2017-12-15|Before: Slattery J, Adam P

Judgment

This is the Court's third judgment upon the retrial of these proceedings. In the first judgment on the retrial, the Court awarded $250,000 to the plaintiff against both defendants on account of the defendants' conversion of the plaintiff's goods: ACN 116 746 859 (formerly known as Palermo Seafoods Pty Ltd) v Lunapas Pty Ltd & Anor [2017] NSWSC 1583 ("the principal judgment").
The Court entered judgment against both defendants on 11 December 2017 for $250,000, a sum that represented (excluding interest up to judgment) the market value of the plaintiff's plant, equipment and stock that the defendants converted on or about 8 May 2013.
In the principal judgment the Court reserved all questions of interest and costs for further argument. Submissions in relation to pre-judgment interest were made on 15 December 2017, when the Court gave judgment and entered orders for pre-judgment interest up to 11 December 2017 in the sum of $70,648.12: ACN 116 746 859 (formerly known as Palermo Seafoods Pty Ltd) v Lunapas Pty Ltd & Anor (No. 2) [2017] NSWSC 1799 ("the second judgment").
This judgment should be read together with the Court's previous judgments. Events, matters and persons are referred to in this judgment in the same way as they are in the Court's principal judgment and the Court's second judgment.
The remaining issues between the parties are: (1) whether the defendants are entitled to set-off a claim they have against Messrs Palermo in other jurisdictions against the plaintiff's judgment in the present proceedings; and (2) what costs order should be made in these proceedings and should any of the previous costs orders be re-visited as a result of the Court's findings in the principal judgment. These reasons now deal with each of those issues.

(2) The Costs Orders

There are two costs sub-issues: (1) should previous costs orders be disturbed; and (2) should costs follow the event.
The Court sees no basis to disturb previous costs orders. This Court undertook a re-hearing on a discrete part of these proceedings, as directed by the Court of Appeal. The re-hearing did not involve re-examining the prior decisions of other judges in the proceedings. But except to the extent that the Court of Appeal disturbed the prior decisions, this Court applied aspects of the findings in those decisions or the re-hearing. The Court will not make or change costs orders beyond the present hearing.
The Palermo interests were substantially successful on this hearing. But they were successful in a much smaller sum than their original money claims, as the principal judgment makes clear. In my view, they should still have a substantial part of their costs. One can expect that some time was spent on the part of Lunapas in defending these unsuccessful claims that were severable in substance. In my view, in the circumstances, the appropriate order is that the defendants pay two-thirds of the plaintiff's costs of the proceedings on the re-hearing.
But these costs may be very small in any event. The Palermos were self-represented. They did incur some outgoings in filing and service fees and the like, so a costs order is appropriate. The calculation of the actual costs will be a matter for later costs assessment.

Conclusion and Orders

Accordingly, the Court makes the following orders and directions: 1. Order the defendants to pay two-thirds of the plaintiff's costs of the re-hearing of the issues of quantum of loss due to conversion of the plaintiff's goods. 2. Dismiss the first defendant's present claim to set off against the judgment entered on 11 December 2017 the first defendant's action for arrears of rent in respect of the premises in the Southport Magistrate's Court. 3. Dismiss the defendants' present claim to stay the plaintiff's judgments on account of the first defendant's action for arrears of rent in respect of the premises in the Southport Magistrate's Court.

Amendments 08 May 2018 - Coversheet amended to list parties as:

Plaintiff: ACN 116 746 859 (formerly Palermo Seafoods Pty Ltd) Defendant: Lunapas Pty Ltd Second Defendant: Luciano Menniti DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2018

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Judgment (6 paragraphs)

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