Elsafty Enterprises Pty Ltd v. Mermaids Cafe & Bar Pty Ltd

[2008] QSC 44

SUPREME COURT OF QUEENSLAND

CITATION:

Elsafty Enterprises Pty Ltd v Mermaids Café & Bar Pty Ltd [2008] QSC 44

PARTIES:

ELSAFTY ENTERPRISES PTY LTD ABN 096 009 371
(plaintiff)
v
MERMAIDS CAFÉ & BAR PTY LTD ACN 081 474 900
(defendant)

FILE NO:

BS2269/2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

12 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

N/A

JUDGE:

McMurdo J

ORDER:

The plaintiff pay to the defendant one third of the defendant’s costs of the proceedings, including reserved costs (if any).

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – Generally – Where most but not all of the issues at trial were resolved in favour of the defendant – Where plaintiff’s claim was overstated – one third of the defendant’s costs to be paid by the plaintiff on the standard basis

COUNSEL:

Mr A Collins for the defendant

SOLICITORS:

Baxters Solicitors for the plaintiff

Fitz-Walter Lawyers for the defendant

1. On 20 December 2007 I gave judgment but left open the question of costs so that the parties could consider the reasons for judgment.  Subsequently each side provided written submissions as to costs.  The plaintiff seeks an order that it have one third of the costs of the action.  The defendant says that it should have 80 per cent of its costs.

1. The starting point is that the plaintiff was given judgment for the not insubstantial amount of $132,480.22, being for rent and other monies owing under the sub-lease, together with interest.  The plaintiff had claimed more than that but was unsuccessful on the question of what I described in my judgment as the 5D discount.  There were strongly contested factual issues in relation to that discount which were resolved in favour of the defendant.  But the defendant was otherwise successful on that money claim, and had that been the only cause of action in question, the plaintiff would have had its costs of the proceedings albeit as a District Court claim.  The plaintiff further claimed that the sub-lease had been forfeited, upon which it failed.  That was not merely a legal question, because it involved questions of fact going to the state of the account between the parties at the date of the relevant notice to remedy a breach of covenant as well as to the plaintiff’s case that relief against forfeiture should be refused because of the relative seriousness of the defendant’s conduct.  In all of this the plaintiff was unsuccessful.

1. In addition, there was the plaintiff’s claim for declaratory relief as to the option to renew.  This alleged cause of action raised both factual and legal questions, on which the plaintiff was unsuccessful.

1. In circumstances such as these it is impossible to precisely assess the extent to which the litigation of one alleged cause of action has contributed to costs.  Overall however, most of the trial, both in evidence and in argument, involved issues upon which the defendant succeeded.  And although the plaintiff succeeded on its money claim, much of the time taken with that cause of action resulted in the conclusion that the plaintiff’s claim was overstated. 

1. As each of the arguments accepts, it is preferable to make an order simply in terms of a percentage of the costs overall, rather than making distinct orders for the several causes of action or several questions within them.  Neither party suggests that some separate order be made for any reserved costs.  In my conclusion the defendant should have one third of its costs upon the standard basis.