Agricultural and Rural Finance Pty Limited v John Edward Atkinson & Ors

Supreme Court of NSW|2011-06-07|Before: Einstein J, Mr P

Introduction 1On 17 June 2010 the Court gave judgment in these proceedings ( the June 2010 judgment ). The parties were directed to bring in short minutes to give effect to those reasons and to address on costs: see [333] of June 2010 judgment. 2The parties could not agree upon the terms of the short minutes or on costs. The Court heard evidence and submissions on the matters in dispute and gave judgment on 2 December 2010 (the December 2010 judgment). At [143] I ordered: "The parties to bring in short minutes of order that deal with the entirety of these reasons." 3Both groups of parties have prepared short minutes of order, which they submitted give effect to these reasons. 4In a number of instances the parties have resolved their differences but other differences remain.

The areas in respect of which the parties are now in agreement 5The parties are now in agreement in relation to the following matters : (1)Judgment be entered for the plaintiff against each of the defendants ( the ADF defendants ) listed in the schedule below ( the Schedule ) in the amount stated beside the name of that ADF defendant in the column headed "Judgment Amount". Schedule

14 76 Peter Brakatselos $ 77,507.75 35 109 Geoffrey Frederickson $ 36,271.77 52 111 Allan Holmes $ 40,061.57 75 85 Nicholas Rowe $ 80,123.14 78/189 75 Maria Russo $ 80,123.14 95 39 David Wardle $ 1,229,484.56 124 73 Jennifer Wallace $ 31,958.80 149 106 Franco Giannuzzi $ 100,809.81 172 128 Gavin Long $ 136,461.12 177 48 Maria Michael $ 96,807.07 193 98 Cristina Spyrakis $ 102,933.01

(2)The cross-claims filed by the ADF defendants in the proceedings, being the cross claims listed in the Schedule ( the cross-claims ), be dismissed.

Areas in respect of which the Court makes findings 6Following the close argument concerning the plaintiff's claim to indemnity costs in relation to today's application, the principled exercise of the material discretion is to order as follows : (1)that the parties represented by Ms Tsekouras pay the costs of the plaintiff incurred by reason of the defendants having withdrawn their contentions concerning the pre- determination interest to which the plaintiff was entitled; (2)otherwise that the parties pay their own costs of the applications pursued on 7 June 2011. 7The application by the defendants to rely upon an affidavit of Mr Forsyth sworn on 7 June 2011 is not acceded to. The principled exercise of the relevant discretion is for the court to refuse to admit that evidence as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff and/or cause or result in undue waste of time. 8Further, the execution of the judgments in order 1 is to be stayed for a period of 40 days from the date of these orders. 9Order 4 in the plaintiff's short minutes of order concerned the second cross- defendant and not the plaintiff. Mr Condon, on behalf of the second cross-defendant, adopted the plaintiff's submissions in respect of order 3. For the same reasons as making that order, it is appropriate to make order 4.

Turning to the substantial content 10The contest litigated appeared to be: (1)The plaintiffs claim that subject to order 5, the ADF defendants pay the plaintiff's costs of and incidental to the proceedings on the summons and the cross-claims on a joint and several basis and on the usual basis subject to the plaintiff not recovering against the ADF defendants any costs which it has already recovered by way of settlements with other defendants inclusive of costs. (2)The defendants' alternative claim that subject to Order 4, the subject defendants pay the plaintiff's costs (as plaintiff and as first cross-defendant in the cross-claims) and the costs of the second cross-defendant all as agreed or assessed on the ordinary basis provided that there shall be excluded from the costs so payable any costs not referrable to or appropriately apportionable to the proceedings against the subject defendants or the cross-claims of the subject defendants, including without limiting the generality of the foregoing any costs referrable to or appropriately apportionable to: (a)the Gardiner Test Case; (b)any defendant against whom the plaintiff has discontinued the proceedings or in respect of whom judgment has been entered in favour of the defendant (or in respect of whom the plaintiff has consented to such judgment being entered) or in respect of whom service on the defendant of the plaintiff's summons has been set aside; and (c)any defendant with whom the plaintiff has agreed (or the plaintiff and the second cross-defendant have agreed) to settle the claims of the plaintiff by payment of an amount stated to be "inclusive of costs" or otherwise on a basis where the parties' agreement was or is that the plaintiff (or the plaintiff and the second cross-defendant) would not recover any separate amount from any such defendant on account of costs 11It is appropriate to note that the defendants alternate claim has a number of problems, not the least of which concerns the difficulty which would face any costs assessor in terms of understanding precisely what that claim amounted to. 12It is particularly important to note that in the December 2010 judgment, the Court ordered that the parties were to bring in Short minutes of order that dealt with the entirety of the reasons then handed down. 13I accept the plaintiff's submission that the defendants are at fault in wishing re-agitate issues that have now been resolved by judgments of the Court. 14Relevantly and as the plaintiff has submitted : At [7] - [101] of the December 2010 judgment the Court determined all costs questions arising for determination. Relevantly the Court: (a)Rejected the defendants' submission that a " per defendant costs order should be made" : [71] - [82], [78]. (b)Ordered at [78] that: "... I order that the defendant pay the costs of the plaintiff of and incidental to the proceedings on the Summons, and also the costs of the two cross-defendants of the proceedings on the cross-claims (the plaintiff and OAL), on the usual basis, not an indemnity basis." (c)There should not be double recovery of costs: [79]. (d)At [81]: "In my view the double-recovery issue can be dealt with simply by ordering that any costs which the plaintiff has already recovered by way of settlements inclusive of costs must be subtracted from the costs that would otherwise be assessed as being recoverable by it against the defendants." 15Importantly during the hearing which took place on June 7 the Court required the plaintiff to give the following undertaking : An undertaking that the solicitor for the plaintiff file and serve on the costs assessor assessing the costs recoverable under Order 3 above and on the solicitor for ADF defendants, such material and explanations as the costs assessor may require in order to give effect to the requirement in order 3 that there be no double/ recovery of costs by the plaintiff against the ADF defendants under order 3 above.

Orders 16Consequently, the Court makes the following orders : (1)Judgment be entered for the plaintiff against each of the defendants ( the ADF defendants ) listed in the schedule below ( the Schedule ) in the amount stated beside the name of that ADF defendant in the column headed "Total per defendant". Schedule

Defendant no Cross- claim no. Name Total per defdnant

(2)The cross-claims filed by the ADF defendants in the proceedings, being the cross claims listed in the Schedule ( the cross-claims ), be dismissed. (3)Subject to order 6, the ADF defendants pay the plaintiff's costs of and incidental to the proceedings on the summons and the cross-claims on a joint and several basis and on the usual basis subject to the plaintiff not recovering against the ADF defendants any costs which it has already recovered by way of settlements with other defendants inclusive of costs. (4)The ADF defendants pay the costs of the second cross defendant (Oceania Agriculture Pty Limited) of the cross-claims on a joint and several basis and on the usual basis. (5)The solicitor for the plaintiff file and serve on the costs assessor assessing the costs recoverable under order (3) above and on the solicitor for the ADF defendants such material and explanations as the costs assessor may require in order to give effect to the requirement in order (3) that there be no double recovery of costs by the plaintiff against the ADF defendants under order (3) above. (6)That the parties represented by Ms Tsekouras pay the costs of the plaintiff incurred by reason of the defendants having withdrawn their contentions concerning the pre- determination interest to which the plaintiff was entitled; (7)Otherwise that the parties pay their own costs of the applications pursued on 7 June 2011; (8)Execution of the judgments in paragraph 1 be stayed for a period of 40 days from the date of these orders.

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: 09 June 2011

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties