Bettervale v Warehouse Solutions International (No 2)

[2015] NSWSC 1351

Supreme Court

New South Wales

Medium Neutral Citation:	Bettervale v Warehouse Solutions International (No 2) [2015] NSWSC 1351
Hearing dates:	10 September 2015
Date of orders:	10 September 2015
Decision date:	10 September 2015
Jurisdiction:	Equity - Real Property List
Before:	McDougall J
Decision:	Orders made in accordance with draft as amended.
Catchwords:	PRACTICE & PROCEDURE – whether a stay of execution of a writ of possession should be conditional on payment of rental arrears – where arrears fall into two categories, the later relating to a holding-over and the earlier relating to debt owed for over a year – where equity would require the defendant to do equity and bring itself up to date on the current lease before granting a stay of the writ – where that rationale would not extend to give the plaintiff security for the entire judgment sum – order that the defendant pay only the latter sum into court COSTS – two defendants – where each seeks an order that costs be payable only of the proceedings as against it – where two cases shared the same facts, issues of law, lawyers, counsel and evidence – consequence that cases were inextricably interlinked such that costs should not be split up – order that the defendants pay the plaintiff’s costs
Category:	Procedural and other rulings
Parties:	Bettervale Pty Ltd (Plaintiff) Warehouse Solutions International Pty Ltd (First Defendant) WSI International Pty Ltd (Second Defendant)
File Number(s):	2015/202245
Decision under appeal	File Number(s): 2015/202245

Judgment   (EX TEMPORE – REVISED 10 SEPTEMBER 2015)

1. HIS HONOUR: The parties were required to prepare draft orders to give effect to the brief reasons for decision that I gave orally yesterday (which will be supplemented in writing in the near future). There is some disagreement as to the orders to be made, and a reservation in respect of the judgment sum as between the plaintiff and the first defendant. That reservation arises because the first defendant has not had an opportunity to check the calculation.

2. There are more serious questions as to the conditions on which any stay should be ordered as in favour of the first defendant and as to the question of costs.

3. Dealing first with the judgment sum, I accept that the first defendant should have some opportunity to check and if necessary seek to correct the amount (which includes interest). Accordingly, I propose to extend the liberty to apply for which the draft orders provide to encompass the judgment to which I have referred.

4. The defendants wish to have the writs of possession stayed. The first defendant's position, on my findings, is that it owes of the order of $400,000 in rental for the now expired leases, and an additional substantial sum in respect of rental during the holding over period (that additional sum is based on my conclusion that the plaintiff was entitled to and did increase the rent payable during the holding over period). The plaintiff sought an order that any stay be conditional on payment into court not only of arrears of rent during the holding over period but also the whole judgment sum.

5. I do not agree that the stay should be conditional on payment into court of the whole judgment sum. That does not seem to me to be consistent with the purposes for which an interim stay is granted, namely (in this case) to give the first defendant both an opportunity to vacate the premises in an orderly manner and to consider whether to take its chances in the Court of Appeal.

6. The effect of the order that the plaintiff seeks would be to give it some form of security in respect of a debt owing from a period now more than 12 months past. That seems to me to be quite distinguishable from requiring the first defendant in effect to do equity by requiring it to bring itself up to date in respect of its current leasehold arrangements.

7. For those reasons I think that the stay should be granted on condition of payment into Court of rent in respect of the holding over period. To clarify that, it should be in respect of all arrears of rent during the holding over period. That runs from 18 July 2015, when the notice to quit expired.

8. I turn to the question of costs. The plaintiff seeks an order for costs against both defendants. Each defendant seeks an order that the costs be payable only of the proceedings as against it.

9. The simple fact is that although there were two separate cases (as almost always is the position where there is more than one defendant), the two cases were inextricably interlinked. The defendants are in effect controlled by the one group of people. They instructed the one set of lawyers and counsel. Their cases were run together. Evidence in one was evidence in the other, not because of any order of the Court made to that effect but because that was of necessity the only way in which the full scope of the evidence could be revealed.

10. The issues of fact overlapped almost one hundred per cent. So too did the issues of law. That should be apparent even from the draft reasons that I gave yesterday. It will be painfully apparent from the more detailed reasons to be handed down in the near future.

11. In those circumstances I see no reason to split up the costs. If I were to do so it would be necessary to consider how this could be done. One way would be to leave the task to some hapless assessor. Another would be for me to make some arbitrary apportionment. In circumstances where the two cases were as I have said inextricably interlinked, I do not think that either of those steps should be taken.

12. For those reasons, I make orders and give directions in accordance with paras 1 to 22 as amended of the form of order initialled by me and dated today's date.

13. I note that this includes a direction for entry forthwith.

**********

Decision last updated: 16 September 2015