Slaveski v Nanevski Developments Pty Ltd

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

1. THE COURT: The Court handed down its judgment in this appeal on 29 June 2023: Slaveski v Nanevski Developments Pty Ltd [2023] NSWCA 145 (Judgment). Four issues were raised challenging factual findings made by the primary judge. The context of the judgment and the issues in dispute will not be repeated here, and familiarity with that judgment will be assumed.
2. The result of the appeal, the Court's reasoning as to why the parties should bear their own costs of the appeal, and its preliminary view as to the costs orders in the proceeding below, were explained in the Judgment as follows: [88] The appellants have succeeded on three out of four issues (ie all but the third issue, relating to Ground 5). Yet for the first issue, relating to the $590,000 loan, it is difficult to discern any practical significance to the claim beyond a minor entitlement to interest, and in circumstances where the appellants advanced not a skerrick of reasoning in support of their position in the Court below. On the second issue, dealing with the $302,500 in cash, a number of the points significant to the appellants' success were not raised below. On the fourth issue, relating to the consultancy fees, the amounts in issue are not known to the Court but it appears unlikely that they will be substantial. Taking account of all the circumstances each side should bear their own costs of the appeal. [89] As to costs below, the primary judge ordered that the appellants pay the respondent's costs both on the latter's claim, up to 30 August 2022, and on the appellants' cross-claim (which he dismissed). The appellants originally had relied on a separate ground of challenge to the costs orders made below, which was abandoned. However, in light of the appellants' partial success on appeal they are entitled to some allowance being made in the costs orders for the trial. [90] To make different allocations of costs on the respondent's claim and the cross-claim, or to otherwise order costs for one side on one set of issues and for the other side on other issues, would be likely to add to the difficulties and costs of assessment. The better course is to make one costs order involving an approximate assessment of overall success below in the proceeding at issue, and taking account of the degree to which resources of the parties were directed to those issues. The respondent succeeded on the main dispute below, being the existence and core terms of the partnership, with the correlative finding that the two properties were held on trust. The issues on which the appellants have now succeeded appear to have occupied limited resources below. Making an allowance for not ordering any costs in favour of the appellants at first instance, [the Court's] preliminary view is that it is appropriate that the appellants be ordered to pay 75% of the respondent's costs of the proceedings below (including as to the cross-claim). For the avoidance of doubt this would not affect the costs order made for the separate proceeding heard at the same time, matter number 2019/95876, which has not been challenged in this appeal. The order would be as follows: Set aside orders 17 and 18 made by the Supreme Court on 6 September 2022 (relating to costs of the proceedings below) and in lieu thereof order that the defendants are to pay 75% of the plaintiff's costs of proceedings 2019/153341 up until 30 August 2022, including as regards the cross-claim, noting that this order does not affect any costs the subject of a separate costs order. [91] However, it is appropriate that the parties be given an opportunity to be heard on this issue. An order will be made in the terms just identified subject to any submissions made by the parties, which may be made pursuant to the timetable set out below.