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Ell v Cisera

Ell v Cisera

Case [2000] NSWSC 961 5 October 2000

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CITATION: Ell v Cisera [2000] NSWSC 961

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2016/00

HEARING DATE(S): 5 October 2000

JUDGMENT DATE: 5 October 2000

PARTIES :

Richard Ell t/as GNP Printing (P)
Dino Cisera (D)

JUDGMENT OF: Hamilton J

COUNSEL : H Thurairajah, Sol (P)
D L Oliveri, Sol (D)

SOLICITORS: Thurai Rajah Lawyers (P)
Oliveri Solicitors (D)

CATCHWORDS: PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct.

LEGISLATION CITED: Supreme Court Rules 1970 Pt 52A r 11

CASES CITED: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2000] NSWSC 313
Ell v Cisera [2000] NSWSC 768
Hughes v Western Australian Cricket Association (1986) ATPR 40-748
JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432
Ronnoc Finance Ltd v Spectrum Network Systems Ltd 19 November 1997 NSWSC unreported
Waters v P C Henderson (Australia) Pty Ltd 6 July 1994 NSWCA unreported

DECISION: General rule should not be departed from.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 5 OCTOBER 2000

2016/00 RICHARD ELL t/as GNP PRINTING v DINO CISERA

JUDGMENT

HIS HONOUR:
1 The question of the costs of these proceedings has been argued before me this morning. Each of the parties applies for an order for costs of the proceedings against the other on the indemnity basis. The contested questions which I determined in the proceedings were set out in [19] of the substantive judgment which I delivered on 3 August 2000: Ell v Cisera [2000] NSWSC 768 (“my judgment”). There were really three issues in the proceedings. The first was encompassed in Question (1); the second in Questions (2) and (3); and the third in Question (4). On the issue encompassed in Questions (2) and (3), in essence, whether the remedial steps taken by the plaintiff in respect of the factory floor were “reasonable steps to reinstate the premises”, the plaintiff succeeded and the defendant failed. The plaintiff was allowed, under the orders that I subsequently made, to resume occupation of the premises to carry on the reinstatement process. As to the first issue raised, by Question (1), namely, whether the defendant terminated the lease by re-entry on 7 March 2000, the plaintiff succeeded in the sense that I held that question not now to arise, it having been determined in a practical way by the agreement between the parties embodied in the orders made by Santow J on 6 April 2000. In this sense, the plaintiff won on that issue, because the decision meant that the defendant was not entitled to rely in his favour upon a valid termination of the lease on 7 March 2000. The third issue, encompassed in Question (4), was whether the plaintiff was entitled to the indulgence of relief from the consequences of his breaches of the lease in relation to the exercise of the option…

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 Ell v Cisera

Details

AGLC: Ell v Cisera [2000] NSWSC 961
Case: [2000] NSWSC 961
Decision Date: 5 October 2000

CaseChat Overview and Summary

The case of Ell v Cisera was heard in the court, where the plaintiff, Ell, sought relief against the defendant, Cisera, due to disputes arising from contractual obligations. The primary nature of the dispute revolved around the interpretation and enforcement of a contractual agreement between the parties. The case was brought before the court to determine the validity of certain claims and to address the issue of costs associated with the proceedings.

The court was tasked with deciding several legal issues, the most significant of which was whether the claims presented by the plaintiff were distinct and warranted separate consideration under the general rule of costs. Specifically, the court needed to assess whether the claims were sufficiently distinct to justify a departure from the usual rule that the losing party pays the costs of the winning party. Another key issue was whether the court had the necessary powers to make a determination on the costs, and if so, what relevant principles should be applied.

The court considered the nature of the claims and the principles governing costs in litigation. It determined that the claims were not sufficiently distinct to warrant a departure from the general rule of costs. The court held that the claims were closely related and arose from the same contractual dispute, thus they should be treated as a single matter for the purposes of costs. The court also considered its powers in relation to costs and concluded that it had the authority to make a decision on the matter. The court applied the relevant principles and found that the general rule of costs should apply, and therefore, the losing party was to bear the costs of the proceedings. The court made an order that the defendant, Cisera, was to pay the plaintiff's costs.

Orders