Bostik Australia Pty Ltd v Liddiard

Proposed orders other than as to costs

1. The parties agree that orders 1 - 4 of the Plaintiffs' proposed orders are appropriate. The parties also agree as to the substance of paragraphs 5 - 7 of the Plaintiffs' proposed orders, but the Defendants submit that those orders did not expressly recognise that the proposed judgment amounts were joint and several liabilities across one or more of the Defendants, and that the orders should make clear which substantive monetary orders formed the foundation for the equitable lien to be declared in paragraph 1 of the Plaintiffs' proposed orders. I do not see any lack of clarity as to the operation of the lien in the orders. The Defendants also submitted that various notations should be added to the orders to prevent the Plaintiffs recovering the same money twice. The Plaintiffs respond that those notations are not necessary because, so far as they recover an amount against one defendant, then they are prevented from recovering that amount against another defendant by reason of the rule against double satisfaction: Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159 at 180 - 181. I accept that submission.
2. Since there was agreement as to orders 1 - 4 of the orders proposed by the Plaintiffs, and since I have not accepted the Defendants' submission that additional notations are required in respect of orders 5 - 7, I will also make orders in the form of those proposed orders. There was no contest as to the calculations of interest undertaken by the Plaintiffs.

The issues in dispute as to costs

1. There was a dispute between the parties in respect of costs. The Defendants point out, correctly, that the Plaintiffs were unsuccessful in their claims against three of the Defendants, namely NJ Investments, Mrs Jammal and Mr Ahmajani. The Defendants submit, also correctly, that the Plaintiffs were unsuccessful in respect of some of the bases on which they put their claims, including the propositions that they were entitled to recover unpaid amounts of "BBX Trade Dollars" as debts and that the sale of the two properties in issue took place at undervalue, and that had a significant impact upon the amount of damages which they recovered. The Defendants also submit the Plaintiffs put them to the expense of responding to a case which was more involved and expensive than was justified.
2. The Defendants' primary submission is that no order as to costs should be made. The Defendants advance eight reasons why such an order is appropriate, although some of those reasons overlap. I will summarise those reasons in broad form, without disrespect to the detail of the submissions made by Mr Bedrossian in support of them.
3. Mr Bedrossian points out that the Plaintiffs failed, as I have noted above, in respect of aspects of their claim, including claims that the two units in issue in the proceedings were sold at undervalue and also failed as to a construction issue as to the contracts for sale of those units; abandoned a contention that special conditions to that contract did not form part of the contract shortly before the hearing; and failed against three out of the six Defendants. The Plaintiffs accept that their uncommercial transaction case failed so far as they sought to establish that the value of the two properties in issue was higher than the cash component of the relevant sales, but point to the fact that there was conflicting evidence as to that matter led at the hearing, and that some of the Defendants had asserted that the properties had a higher value in contemporaneous correspondence when it suited their purposes. They also point out, with substantial force, that some of the Defendants had been unsuccessful as to aspects of their cases at the hearing, including that Eddy Investments failed in its defences as to sham, collateral contract and equitable estoppel, and any issue by issue approach would need to address the issues as to which the Defendants failed as well as to the issues as to which the Plaintiffs failed. The Plaintiffs also respond that the criticism in respect of the issue as to the special conditions as to the contracts turn on matters of evidence as to the dealings between the parties which have not been led in this application.
4. The Plaintiffs submit that it is not appropriate or desirable to embark upon an issue by issue analysis of the outcome at trial, and refer to the consideration of that question in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38]; Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 at [28] - [31]; Owners - Strata Plan No 61162 v Lipman [2014] NSWSC 622, and the observations of the Court of Appeal in Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 288 ALR 385 and of the Full Court of the Federal Court of Australia in State of Victoria v Sportsbet Pty Ltd (No 2) [2011] NSWCA 256; [2012] FCAFC 174. I will return to that question below. The Defendants respond, in reliance on Bostik Australia Pty Ltd v Liddiard (No 2) above, that differential costs outcomes can be appropriate where a particular issue or group of issues is clearly dominant or separable, and submit that the allegations regarding uncommercial transactions, BBX Trade Dollars and contract construction were separable and significant matters at the trial.
5. Mr Bedrossian submits that the Plaintiffs failed in respect of their claim against NJ Investments in relation to unit 11; and fourth, that NJ Investments would have succeeded in respect of its claims for declaratory relief as to the construction of the unit 11 contract, brought in other proceedings which were consolidated with these proceedings, having regard to my findings. I accept that submission and it seems to me that any order for costs made in favour of NJ Investments in these proceedings should extend to the costs of those other proceedings.
6. Mr Bedrossian submits that the Plaintiffs had initially claimed amounts ranging between $542,579 and $2,967,536 against various Defendants and recovered amounts ranging between $482,441 and $658,885 against three of the Defendants. The Plaintiffs respond, with substantial force, that, notwithstanding that they have recovered less than they had sought, they have nonetheless obtained substantial judgments against three of the Defendants, and that the difference in result largely reflects the result of an issue as to contractual construction which did not take significant time at the hearing.
7. Mr Bedrossian also submits that the Plaintiffs had sought to rely upon inadmissible expert evidence, and the review of that expert evidence would have been expensive for the Defendants. I accept that proposition in part. However, it was necessary for the Defendants to lead expert valuation evidence in any event, irrespective of whether the Plaintiffs did so, in order to seek to falsify (as they ultimately succeeded in doing) the information that some of the Defendants themselves had provided to National Australia Bank so as to reduce (as they also succeeded in doing) the damages that might otherwise be awarded against the unsuccessful Defendants. Mr Bedrossian also submits that the Plaintiffs did not lead evidence of one of the witnesses as to whom they had served an affidavit, and which the Defendants had prepared to cross-examine. Mr Sulan, who appears for the Plaintiffs, responds, and I accept, that a forensic choice of that kind is of little relevance to any order for costs in the proceedings. Mr Bedrossian also submits that a claim for $131,000 as to which the Plaintiffs succeeded was only pleaded in an Amended Statement of Claim and was only successful in part against Platnum Corporation and did not succeed against Mrs Jammal. The Plaintiffs were, however, successful in that claim against Mr Jammal and in part of that claim against Platnum.
8. Mr Bedrossian relies on these matters to support the Defendants' primary submission that no order as to costs achieves a fair balance between the Plaintiffs' success and the issues and claims upon which they failed. Mr Sulan responds by referring to a number of aspects of the judgment, including aspects of the Plaintiffs' success against Mr Jammal, Eddy Investments and Platnum Corporation. He submits, and I accept, that the making of no order as to costs would not give due recognition to the success which the Plaintiffs have had against those Defendants, against whom they have recovered significant amounts.

The Defendants' alternative submission as to a global costs order

1. The Defendants alternatively submit that the Court may make costs orders based upon a global view of the proceedings, having regard to the legal and factual allegations pursued against different parties and the extent of their success or otherwise upon those allegations. The Defendants submit that a global approach to costs should reflect the likely outcome if discrete costs orders were made and set off against one another, noting that in this case the Defendants were represented by the same Counsel and solicitors. The Defendants submit that if discrete costs orders were made, then the net effect of those orders would be in favour of the Defendants, and they should not be in a worse position by reason of the making of a global costs order. The Defendants did not, in making these submissions, address the case law referable to orders for costs in proceedings with a mixed result, to which I will refer below. The proposition that a global costs order would have been in favour of the Defendants also seems to me implausible, where the Plaintiffs were successful against three Defendants in a manner that established their right to substantial recoveries.
2. Alternatively, the Defendants submit that an order should be made that the Plaintiffs pay the Second, Third and Fourth Defendants' costs of the proceedings, having failed against those Defendants; an order should be made that the Plaintiffs also pay NJ Investments' costs of the earlier proceedings brought by it, and consolidated with these proceedings; an order should be made that the Plaintiffs pay the Defendants' costs of certain aspects of the proceedings and that they pay 50% of the costs of the final hearing; and that there should be a set-off of costs orders made in favour of any of the Defendants against costs orders made in favour of the Plaintiffs. Mr Sulan pointed out, and Mr Bedrossian accepted in oral submissions, that these suggested orders were internally inconsistent, including mixing costs orders in favour of particular parties and orders based on particular issues. Mr Bedrossian ultimately relied on these orders as merely an indication of the complexity of the matter and as supporting no order as to costs. I accept that the matter was complex but that does not seem to me to support the result that there should be no order as to costs.

The Plaintiffs' position

1. Conversely, the Plaintiffs contend that the unsuccessful Defendants should pay their costs of the proceedings, other than their costs incurred in their preparation of their expert valuation reports which were not admitted, or on which they otherwise did not rely. The Plaintiffs also submit that no order should be made that they pay the successful Defendants' costs, and there should either be no order as to costs in favour of the successful Defendants or any costs award in favour of the successful Defendants should be made against the unsuccessful Defendants. They submit that the various Defendants had common representation, and that no additional costs are likely to have been incurred by the successful Defendants. I do not accept that approach, since it could equally well be put that no additional costs are likely to have been incurred by the unsuccessful Defendants beyond those incurred by the successful Defendants, where both successful and unsuccessful Defendants had incurred the costs of the proceedings.
2. The Plaintiffs also advance criticisms of the substantive conduct of the successful Defendants in supporting a claim that no order for costs should be made against them. It seems to me that I should give greater weight to the outcome of the proceedings, and the manner in which they were conducted, which do not seem to me to support an approach by which the successful Defendants are deprived of their costs. Next, the Plaintiffs submit that it was reasonable for the Plaintiffs to join the Defendants against which they failed to the proceedings, given the nature of the transactions and the complexity of the relevant matters. While I accept that proposition, it does not seem to me to be an answer to the proposition that the successful Defendants should in the ordinary course have an order for costs in their favour, so as to compensate them for the costs which they have incurred in their successful defence of the proceedings.

Applicable principles and determination

1. The principles applicable to costs, where a plaintiff has succeeded on some but not all issues or against some but not all parties are well-established. Under s 98 of the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 42.1, costs normally follow the event unless it appears that some other order should be made.
2. In Short v Crawley (No 40) [2008] NSWSC 1302, White J observed at [33] that: "The relevant event or events for the purpose of r 42.1 encompasses both the overall outcome of the litigation and the parties' success on particular distinct issues. Whilst the Plaintiffs enjoyed substantial success, their entitlement to costs is modified having regard to the various issues on which the Plaintiffs were wholly or partially unsuccessful, the extent to which those issues were dominant or severable, their overall significance to the outcome, the time they occupied during the hearing, and so far as can be discerned, in preparation."
3. In Bostik Australia Pty Ltd v Liddiard (No 2) above, to which Mr Sulan referred, the Court of Appeal observed (at [38]) that, where there are multiple issues in a case, the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. The Court there also pointed to several circumstances in which a different approach might be justified, and noted that: "Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the Court, which powers should be liberally construed."
4. In Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd above at [28]-[31], in a passage recently approved by McDougall J in Owners - Strata Plan 61162 v Lipman above at [241] (to which Mr Sulan also referred), Hammerschlag J referred to the general rule and to cases where its application may be displaced. His Honour noted that: "Part 42 r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides as follows: Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. The general rule that costs follow the event and that a successful litigant receives his costs in the absence of special circumstances justifying some other order is of very long standing … The general rule can, in the discretion of the Court, be displaced in appropriate cases. … Examples of instances where the general rule may be displaced include the following: a a costs order in favour of a successful party can be modified to reflect its failure on particular issues even if the successful party did not act unreasonably in raising those issues… b if a party unreasonably pursues or persists with points which have no merit, such conduct will constitute a consideration relevant to the ordering of costs even in circumstances where that party is generally successful … c conduct in relation to the matter may be discreditable to an extent warranting a party being deprived of costs… d where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed e where the proceedings involve multiple issues departure from the general rule may be warranted particularly where the losing party has succeeded on issues which occupied significant time. Nevertheless the application of the general rule may involve hardship where a party succeeds on some issues but fails on others particularly where the losing party succeeds on some issues. However unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed … f a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them…" [citations omitted]
5. I also reviewed that applicable principles in Re Metal Storm (subject to deed of company arrangement) [2014] NSWSC 1170 at [47], and noted that: "In particular, the Court may deprive a successful party of the costs relating to an issue on which it lost when that issue is clearly dominant or separable: Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 at [64]; Doppstadt Australia Pty Ltd v Lovick & Son Development Pty Ltd (No 2) [2014] NSWCA 219 at [17]. Where there has been a mixed outcome in proceedings, and costs should be apportioned as between different issues, the Court will generally take a relatively broad brush approach, largely as a matter of impression and evaluation: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22."
6. Some cases have also expressed the view that the principle that a successful party may be deprived of costs and ordered to pay the other party's costs, in respect of issues lost by the successful party which are clearly dominant or severable, operates more strongly against a successful plaintiff: Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 at [9]-[10].
7. It seems to me that the Plaintiffs are entitled to an order that each of Eddy Investments, Mr Jammal and Platnum pay their costs of the proceedings against those persons, excluding the Plaintiffs' costs of and incidental to the preparation and reliance on experts reports as to the value of the relevant units. The Plaintiffs rightly do not seek to recover their costs of preparation of the expert reports which were rejected or not relied upon, in the relevant circumstances. In reaching that view, I recognise that a costs order in favour of the Plaintiffs could be modified to reflect their failure on particular issues even if they did not act unreasonably in raising those issues. However, there is less reason to take that course where the Defendants also raised issues on which they failed, and vigorously contested issues on which the Plaintiffs succeeded.
8. It also does not seem to me that the Plaintiffs unreasonably pursued or persisted with points that had no merit, although they were unsuccessful in their claim that the properties were sold at undervalue. It seems to me that claim was not unreasonably brought where several of the Defendants had claimed the units had the higher values on which the Plaintiffs relied in their dealings with National Australia Bank and in the Liquidators' examinations. I do not consider that the Plaintiffs were obliged to disregard the position which those Defendants had previously taken in that regard, and the fact that there was evidence which, if accepted, would have supported their claim, notwithstanding that, as Mr Bedrossian points out, there was also a substantial amount of other evidence (including the contemporaneous valuation obtained by BankWest and contemporaneous correspondence) to the contrary. I note, for completeness, that I give little weight to the fact that the Plaintiffs would have succeeded in respect of that issue had they succeeded in their construction case as to the terms of the relevant contracts, since success on that basis would have had little practical benefit beyond success in the contract case. I also do not consider that claim was a dominant or separable issue, so that a separate costs order could or should be made in favour of the unsuccessful Defendants in respect of that issue. That issue seems to me to have had a significant overlap with matters relevant to, for example, the claims for breach of director's duty against Mr Jammal.
9. It seems to me that costs should be ordered in favour of Mrs Jammal, Mr Ahmajani and NJ Investments, and the order in favour of NJ Investments should extend to the costs of the proceedings which it had commenced which were heard together with these proceedings. I can see no basis for the order sought by the Plaintiffs that the unsuccessful Defendants pay those costs, where the relevant issues were in contest as between the Plaintiffs and the successful Defendants.
10. I do not consider that the evidence allows me to reach any assessment of the amount or proportion of the costs which would be recoverable by the Plaintiffs against Eddy Investments, Platnum and Mr Jammal, or by Mrs Jammal, Mr Ahmajani and NJ Investments against the Plaintiffs, which could only occur on a detailed assessment. I accept the Plaintiffs' submission that that assessment may well be complex and costly. In those circumstances, I invited the parties to seek to reach agreement as to an overall outcome, if I determined that costs should be approached in this way, which could set off the costs recoverable by the Plaintiffs against some Defendants against the costs recoverable by other Defendants against the Plaintiffs, so as to avoid their each incurring the costs of assessments in respect of the costs orders in their favour. I have not been advised that any agreement has been reached between the parties as to these matters, and I will therefore make orders to the effect noted above in favour of the Plaintiffs on the one hand and NJ Investments, Mrs Jammal and Mr Ahmajani on the other, and will order that those costs be paid as agreed or as assessed.

Orders

1. I therefore make the following orders:
2. Declare that the First Defendant holds title to Lot 102, Deposited Plan 1124621 subject to an equitable lien in favour of the Second Plaintiff in the amount of $482,441.43.
3. Declare that the Sixth Defendant breached his fiduciary duties and duties under ss 180(1), 181(1) and 182(1) of the Corporations Act 2001 (Cth) which were owed to the Second Plaintiff by procuring the transfers of the sum of: (a) $131,000; and (b) $348,974 to the Fifth Defendant.
4. Declare that the First Defendant knowingly participated and assisted in the Sixth Defendants' breaches of duties which were owed to the Second Plaintiff by receiving the sum of $348,974.
5. Declare that the Fifth Defendant knowingly participated and assisted in the Sixth Defendants' breaches of duties which were owed to the Second Plaintiff by receiving the sums of: (a) $84,952; and (b) $348,974.
6. Order that the First Defendant (Eddy Investments (NSW) Pty Ltd) pay the Second Plaintiff the sum of $482,441.43.
7. Order that the Fifth Defendant (Platnum Corporation Pty Ltd) pay the Second Plaintiff the sum of $595,841.18.
8. Order that the Sixth Defendant (Mr Samir Jammal) pay the Second Plaintiff the sum of $658,885.87. 8 Order that the First, Fifth and Sixth Defendants pay the Plaintiffs' costs of these proceedings against those persons, excluding the Plaintiffs' costs of and incidental to the Plaintiffs' preparation and reliance on expert valuation reports, as agreed or as assessed. 9 Order that the Plaintiffs pay the costs of the Second and Fourth Defendants of these proceedings, as agreed or as assessed. 10 Order that the Plaintiffs pay the costs of the Third Defendant of these proceedings and proceedings 2013/231093-1, as agreed or as assessed.

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: 19 March 2015