Floruit Holdings Pty Ltd & Anor v Sebastian - Builders & Developers Pty Ltd

ALLSOP P: I agree with Bergin CJ in Eq.

YOUNG JA: I also agree with Bergin CJ in Eq.

BERGIN CJ in Eq: On 28 September 2009 the appeal in this matter was allowed and the orders of the District Court made on 9 April 2009 and the affirmative answer to the separate question were set aside. The parties have been unable to agree on a costs order and on 9 October 2009 the appellants filed a Notice of Motion seeking an order that the respondent pay the appellants’ costs of and incidental to the appeal. The appellants also seek an order that the respondent pay the appellants’ costs of and incidental to the determination of the separate question in the District Court.

The appellants relied upon their solicitor’s affidavit, Adam Zraika, of Grech Partners, sworn on 8 October 2009. The respondent relied upon its solicitor’s affidavit, Emanuel Refenes, of Pigott Stinson, sworn on 30 October 2009.

The respondent accepts that it should pay the appellants’ costs of the appeal. However the respondent opposes the appellants having the costs of the separate question in the District Court and submitted that those costs should be the plaintiffs’ (appellants’) costs in the cause because the matter is ongoing in the District Court.

In its written submissions filed on 9 November 2009 the respondent has analysed the District Court proceedings, including the appellants’ Cross-Claim. It is submitted that the Cross-Claim is doomed to fail and therefore the respondent should not be burdened with a costs order in relation to the separate question hearing in the District Court.

The fact that the appellants may not be successful in the main case in the District Court, by reason of a failure to prove causation or for any other reason, does not in my view disentitle them to their costs of the hearing in relation to the separate question, which was a discrete issue. The appellants should have their costs of the hearing of the separate question in the District Court. The appellants were successful in the appeal and costs should follow the event.

I propose the following orders: 1. The respondent is to pay the appellants’ costs of and incidental to the appeal. 2. Set aside the costs order of the hearing of the separate question made by Gibb DCJ. 3. The respondent is to pay the appellants’ costs of and incidental to the hearing of the separate question in the District Court. 4. The respondent should have a certificate under the Suitors’ Fund Act 1951 (NSW) subject to the respondent satisfying the provisions of s 6(7) of that Act.