Boreland v Docker (No 2) - [2007] NSWCA 275

New South Wales

Court of Appeal

CITATION: Boreland v Docker & Ors (No 2) [2007] NSWCA 275

HEARING DATE(S): On the papers

JUDGMENT DATE:
10 October 2007

JUDGMENT OF: Mason P at 1; Beazley JA at 1; Ipp JA at 1

DECISION: 1. Correct the Orders made by the Court on 24 April 2007 pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), so as to add as Order 2A: “The respondents’ cross-claim be otherwise dismissed”; 2. Order that the respondents pay 80 per cent of the appellant’s costs at first instance; 3. Order that the appellant and the respondents pay his and their own costs of the appeal.

CATCHWORDS: COSTS – provision in lease that lessee to pay lessor’s costs where no judgment recorded against lessor – whether the effect of the orders of the court was that a judgment was recorded against the lessor - COSTS – appropriate order for costs on appeal and at trial where appellant partially successful on appeal – successful points on appeal subject of significant evidence and submissions at trial

LEGISLATION CITED: Civil Procedure Act 2005 (NSW) ss 3, 133
Suitors’ Fund Act 1951 (NSW) s 6C
Supreme Court Act 1970 (NSW) ss 63, 66, 67, 69A, 73, 75
Uniform Civil Procedure Rules 2005 (NSW) rr 36.1, 36.2, 36.4, 36.11, 36.17

PARTIES: John Leslie Boreland (Appellant)
Shane Docker (First Respondent)
Daniel Thomas Docker (Second Respondent)
Liquor Administration Board (Third Respondent)

FILE NUMBER(S): CA 40060/07

COUNSEL: JM Ireland QC; GA Moore; A Hatzis (Appellant)
DM Murr SC; JB Conomy (First & Second Respondent)
Submitting appearance (Third Respondent)

SOLICITORS: Mavrakis & Associates (Appellant)
JDK Legal (First & Second Respondent)
IV Knight Crown Solicitor (Third Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 6461/2005

LOWER COURT JUDICIAL OFFICER: White J

LOWER COURT DATE OF DECISION: 9 February 2007

LOWER COURT MEDIUM NEUTRAL CITATION: John Leslie Boreland v Shane Docker & 1 Or [2007] NSWSC 53

CA 40060/07

MASON P
BEAZLEY JA
IPP JA
10 October 2007

John Leslie Boreland v Shane Docker & Ors (No 2)

Judgment

1 THE COURT: The appellant was the lessee of certain hotel premises pursuant to a written lease entered into on 1 August 2003. The lease was a weekly tenancy. The appellant contended that there had been a variation of the term of the lease so as to provide for a fixed term expiring on 31 August 2007. The trial judge held there had been no variation. This Court determined, however, that the lease had been varied and made a declaration to that effect.

2 There were a number of poker machine entitlements allocated to the Hotelier’s Licence. This Court determined, for reasons that differed from the reasons of the trial judge, that the appellant was obliged upon the determination of the lease to transfer the poker machine entitlements to the respondents. The Court varied the declaration that had been made by the trial judge relating to the poker machine…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boreland v Docker (No 2)

Details

AGLC: Boreland v Docker (No 2) [2007] NSWCA 275
Case: [2007] NSWCA 275
Decision Date: 10 October 2007

CaseChat Overview and Summary

The dispute in *Boreland v Docker (No 2)* concerned the interpretation of a costs provision in a lease agreement and the appropriate allocation of costs following an appeal. The appeal was heard in the Court of Appeal of New South Wales by Mason P, Beazley JA, and Ipp JA.

The primary legal issues before the Court of Appeal were whether the orders made at first instance resulted in a judgment being recorded against the lessor, thereby triggering a specific costs provision in the lease, and what the appropriate costs orders should be for both the appeal and the trial, given that the appellant was partially successful on appeal. The court also considered the significance of the evidence and submissions presented at trial concerning the points on which the appellant succeeded on appeal.

The Court of Appeal determined that the orders made at first instance did not constitute a judgment recorded against the lessor for the purposes of the lease's costs provision. The court corrected the original orders to clarify that the respondents' cross-claim was otherwise dismissed. Regarding costs, the court ordered that the respondents pay 80 per cent of the appellant's costs at first instance, reflecting the partial success of the appellant on appeal. For the appeal itself, the court ordered that both the appellant and the respondents bear their own costs, acknowledging the mixed outcome of the appeal.

Orders

Orders of the court

1. Correct the Orders made by the Court on 24 April 2007 pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), so as to add as Order 2A: "The respondents' cross-claim be otherwise dismissed"; 2. Order that the respondents pay 80 per cent of the appellant's costs at first instance; 3. Order that the appellant and the respondents pay his and their own costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Boreland v Docker & Ors (No 2) [2007] NSWCA 275
HEARING DATE(S):	On the papers
JUDGMENT DATE:	10 October 2007
JUDGMENT OF:	Mason P at 1; Beazley JA at 1; Ipp JA at 1
DECISION:	1. Correct the Orders made by the Court on 24 April 2007 pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), so as to add as Order 2A: “The respondents’ cross-claim be otherwise dismissed”; 2. Order that the respondents pay 80 per cent of the appellant’s costs at first instance; 3. Order that the appellant and the respondents pay his and their own costs of the appeal.
CATCHWORDS:	COSTS – provision in lease that lessee to pay lessor’s costs where no judgment recorded against lessor – whether the effect of the orders of the court was that a judgment was recorded against the lessor - COSTS – appropriate order for costs on appeal and at trial where appellant partially successful on appeal – successful points on appeal subject of significant evidence and submissions at trial
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) ss 3, 133 Suitors’ Fund Act 1951 (NSW) s 6C Supreme Court Act 1970 (NSW) ss 63, 66, 67, 69A, 73, 75 Uniform Civil Procedure Rules 2005 (NSW) rr 36.1, 36.2, 36.4, 36.11, 36.17
PARTIES:	John Leslie Boreland (Appellant) Shane Docker (First Respondent) Daniel Thomas Docker (Second Respondent) Liquor Administration Board (Third Respondent)
FILE NUMBER(S):	CA 40060/07
COUNSEL:	JM Ireland QC; GA Moore; A Hatzis (Appellant) DM Murr SC; JB Conomy (First & Second Respondent) Submitting appearance (Third Respondent)
SOLICITORS:	Mavrakis & Associates (Appellant) JDK Legal (First & Second Respondent) IV Knight Crown Solicitor (Third Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 6461/2005
LOWER COURT JUDICIAL OFFICER:	White J
LOWER COURT DATE OF DECISION:	9 February 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	John Leslie Boreland v Shane Docker & 1 Or [2007] NSWSC 53