Coast Property Realty Pty Ltd v Falconer - [2016] NSWSC 214

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Coast Property Realty Pty Ltd v Falconer [2016] NSWSC 214
Hearing dates: 25 February 2016
Decision date: 25 February 2016
Before: White J
Decision:
Order that there be no order as to the costs of the proceedings with the intention that each party pay its and his own costs.

Catchwords: COSTS — Application for alternative costs order — Rule 42.19(2) Uniform Civil Procedure Rules 2005 — Plaintiff acted reasonably in commencing proceedings — Defendant acted reasonably in defending proceedings — Plaintiff discontinued proceedings on the basis of an undertaking given by the defendant to the Court — Significant compromise by both parties — Plaintiff achieved practical success — No order as to costs — Parties to pay their own costs
Cases Cited: Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622
Australiawide Airlines Limited v Aspirion Pty Limited [2006] NSWCA 365
Bitannia Pty Ltd v Parkline Constructions [2009] NSWCA 32
Ibrahim v PERI Australia Pty Ltd [2013] NSWCA 328
Category: Costs
Parties: Coast Property Realty Pty Ltd (Plaintiff)
Scott Falconer (Defendant)
Representation:
Counsel:
J R Clarke SC with T Kane (Plaintiff)
L Chan (Defendant)
Solicitors:
Swaab Attorneys (Plaintiff)
n/a (Defendant)

File Number(s): 2016/53916

Judgment

HIS HONOUR: This application concerns questions of costs. On 19 February 2016 the plaintiff filed a summons in which it sought orders to restrain the defendant from, amongst other things, soliciting or accepting any instructions to perform any work for any client of the plaintiff who had been a client of the plaintiff during the period of the defendant's employment. It also sought other forms of relief in the alternative, seeking to restrain the defendant from soliciting or accepting instructions to perform work for any person with whom the defendant had direct dealings in the course of his employment with the plaintiff.
The plaintiff carries on business as a real estate agency under the name of Century 21. It has offices in The Entrance and Berkeley Vale in New South Wales. The defendant had been employed with it as a sales representative.
On 23 February 2016 the proceedings were resolved, save as to questions of costs. I gave leave to the plaintiff to discontinue the proceedings. It did so on the basis of the defendant’s giving undertakings to the Court, on a without admissions basis, in substance that the defendant would not solicit or accept instructions to perform any work for any person with whom he had had direct dealings in the course of his employment with the plaintiff after 30 January 2015. There was a definition of "direct dealings" that excluded from the scope of the undertaking persons who were described as landlord clients of the plaintiff. Those persons had been included within the alternative form of relief sought by the plaintiff in its summons.
The commencement of the proceedings had been preceded by extensive negotiations between the solicitors for the plaintiff and the solicitors for the defendant and…

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.

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Details

Case: [2016] NSWSC 214
Decision Date: 25 February 2016

CaseChat Overview and Summary

The case of Coast Property Realty Pty Ltd v Falconer involved a dispute between the plaintiff, Coast Property Realty, and the defendant, Falconer. The nature of the dispute was related to a contractual obligation, although the specifics of the contract and the contentions are not detailed in the excerpt. The matter was heard in the Civil Division of the Supreme Court of New South Wales. The plaintiff filed an application for an alternative costs order under Rule 42.19(2) of the Uniform Civil Procedure Rules 2005. This rule allows the court to make a costs order different from the usual order if it considers it appropriate.

The legal issue before the court was whether the plaintiff had acted reasonably in initiating the proceedings and whether the defendant had acted reasonably in defending them. The court had to consider the circumstances surrounding the discontinuation of the proceedings by the plaintiff, which occurred after the defendant provided an undertaking to the court. Additionally, the court needed to assess whether there was a significant compromise by both parties, and if the plaintiff had achieved practical success despite discontinuing the proceedings. The court's decision hinged on balancing these factors to determine if an alternative costs order was warranted.

The court found that both parties had acted reasonably in initiating and defending the proceedings. The plaintiff had a reasonable basis for commencing the action, and the defendant had a reasonable defence. The proceedings were discontinued on the basis of an undertaking given by the defendant, which constituted a significant compromise. Despite discontinuing the proceedings, the plaintiff had achieved practical success, as the defendant's undertaking addressed the plaintiff's concerns. Given these findings, the court determined that no order as to costs should be made, and each party was to bear their own costs.

Orders