Cantarella Bros Pty Ltd v Andreasen

[2005] NSWSC 1312

CITATION:	Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 1312
HEARING DATE(S):	14 December 2005
JUDGMENT DATE :	14 December 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Unsuccessful defendants to pay successful plaintiff's costs generally.

CATCHWORDS:	PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally.
LEGISLATION CITED:	Civil Procedure Act 2005 s 100
CASES CITED:	Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 1157 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
PARTIES:	Cantarella Bros Pty Limited (P) Maia Andreasen (D1) Juan Renshaw (D2)
FILE NUMBER(S):	SC 2277/04
COUNSEL:	J W J Stevenson SC and E C Muston (P) D J Fagan SC (Ds)
SOLICITORS:	Deacons (P) TressCox (Ds)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 14 DECEMBER 2005

2277/04 CANTARELLA BROS PTY LIMITED v MAIA ANDREASEN & ANOR

JUDGMENT ON COSTS

1 HIS HONOUR: In this matter I delivered my substantive judgment on 15 November 2005; Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 1157 (“my judgment”).

2 The matter is before me this morning for orders.

3 In my judgment I found for the plaintiff and assessed damages against the defendants in the sum of $60,327.80. The parties are agreed that, including an amount for interest under s 100 of the Civil Procedure Act 2005 (formerly s 94 of the Supreme Court Act 1970) the amount for which judgment should be entered is the sum of $74,662.44.

4 There has not, however, been agreement as to the order for costs. The plaintiff proposes that the first and second defendants be ordered to pay the plaintiff’s costs of these proceedings and of District Court proceedings number 4041/02, which were removed into this Court and became these proceedings.

5 This the defendants resist on the grounds that the basis on which there was held to be a breach of contract which founded the judgment for damages against them was a basis dependent upon an implied term that the defendants would take from the plaintiff all their coffee requirements during the currency of the agreement rather than a stipulated amount of 25 kg per week. The amendment by which the claim based upon a specified amount of 25 kg per week was replaced by a claim based on the implied term was foreshadowed only on 25 May 2005 and was not in fact made until the commencement of the trial early in June 2005.

6 On the basis of my judgment, the defendants concede that they should bear the costs from about that time and that they should also bear the costs of earlier preparing affidavits which were undoubtedly used at the trial in support of the case upon which the plaintiff ultimately succeeded. Their primary submission is that there should be set off against that costs liability their costs which they say were thrown away by the abandonment of the term as to a minimum amount of coffee to be taken, on the basis of which they had conducted their case for some three years. Alternatively, they submit that whilst abandoned, that claim was never determined, so that under the principles enunciated by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 there should be no order as to the costs of the earlier part of the proceedings. If that submission is upheld, then they should undergo an order for costs as indicated above, but otherwise there should be no order as to the costs of the proceedings.

7 Mr Stevenson, of Senior Counsel for the plaintiff, has, however, submitted that there were open throughout that three year period a number of other issues on which the defendants relied, but lost. Those included whether there was a binding contract at all; whether there was a contract for a three year term; and whether the contract was terminable at the will of the defendants. There was also a large issue as to whether or not the contract contained a term or condition that the plaintiff should supply the defendants with large outdoor umbrellas, such that the plaintiff’s failure to do so amounted to a repudiation of the contract for which the defendants were entitled to terminate it. Furthermore, he pointed out that the case was always conducted on the basis that the defendants were obliged to take substantial coffee supplies from the plaintiff throughout the period of the contract, a proposition which the defendants denied. What did change was the basis of the contractual obligation to take coffee supplies. This alone changed at the time that was stipulated.

8 The plaintiff, as the overall victor in a piece of litigation, which was fairly simple in structure, is prima facie entitled to the costs of the proceedings generally. Mr Stevenson’s argument that a large number of the issues between the parties were identical or similar throughout the proceedings in the District Court and in this Court is in my view essentially correct. The fact that the basis of the application to take a specified amount of coffee was changed fairly late in the piece does not seem to me to be a great enough change to justify a departure from the presumption in favour of a general costs order in the plaintiff’s favour. I therefore propose to make the general costs order contained in order 2 of the short minutes with which I am furnished. There will be orders in accordance with the short minutes initialled by me and placed with the papers.

(Mr Fagan sought leave for a stay pending appeal. The application was opposed.)

9 I order that execution of the judgment be stayed up to and including 28 February 2006.

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