Commissioner for Fair Trading v Tschannen

[2004] NSWSC 352

CITATION:	Commissioner for Fair Trading v Tschannen & Ors [2004] NSWSC 352
HEARING DATE(S):	22-26, 29 September 2003 3, 8 & 10 October 2003 1 April 2004
JUDGMENT DATE:	30 April 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Sperling J at 1
DECISION:	(1) Orders pursuant to short minutes of order initialled by me; (2) Costs of mediation, costs in the cause; (3) Plaintiff to pay defendants' costs of plaintiff's application for interlocutory orders; (4) Costs of defendants' application to strike out the summons, costs in the cause; (5) Subject to (3) above, defendants to pay two-thirds of the plaintiff's costs of the proceedings; (6) Liberty to apply in relation to form of orders, provided such liberty is exercised within 28 days.
CATCHWORDS:	Costs - no question of principle
LEGISLATION CITED:	Residential Parks Act 1998, s20, s30, s41, s48, s61, s62, s82
PARTIES :	Commissioner for Fair Trading Warren Eric Tschannen Blackington Pty Ltd Caraco Pty Ltd
FILE NUMBER(S):	SC 13202/02
COUNSEL:	Ms JAD Needham for the Plaintiff Mr IM Wales SC for the Defendants
SOLICITORS:	Office of Fair Trading for the Plaintiff Graham Cochrane, Solicitor for the Defendants

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Sperling J

Friday, 30 April 2004

13202/02 Commissioner for Fair Trading v Warren Eric Tschannen & Ors

Judgment on costs and form of orders

1 His Honour: I gave judgment in this matter on 18 February 2004.

2 The amended summons sought declarations of breach of ss20, 30, 41, 48, 61 and 82 of the Residential Parks Act 1998. I decided that declarations of breach of ss30, 41 and 82 should be made.

3 Consequential orders were sought but refused, including injunctions to restrain further breaches of ss30 and 82 and an order for appointment of a manager in place of the first defendant. Orders were also sought for compliance with Tribunal orders and for compensation and those orders also were not made.

4 At the request of the plaintiff and there being no objection by the defendants, I withheld making formal orders pending my decision as to costs.

5 Written submissions were supplemented by oral argument.

6 It was submitted on behalf of the plaintiff that there should be an order for costs of the proceedings in its favour.

7 It was submitted that the plaintiffs had been substantially successful, that the bulk of the evidence related to the access issue, consent to assignments, interference with sales and the conduct of the first defendant generally. It may be noted that the conduct of the first defendant generally was not squarely within the ambit of the issues decided in favour of the plaintiff.

8 It was further submitted that the bringing of the proceedings had caused a change of attitude on the part of the defendants involving a wider course of conduct than the matters covered by the declarations ultimately made. It was submitted that, but for the defendants’ change of attitude, brought about by the proceedings,…