Exceed Education Pty Ltd t/as Young Minds Academy v Sylvester (No 2)

In the matter of Exceed Education Pty Ltd t/as Young Minds Academy v Sylvester (No 2), the court was called upon to determine the appropriate costs order between the parties, following a prior judgment which found that Ms Sylvester unreasonably withheld consent to the transfer of the Lease and ordered specific performance conditional on the payment of outstanding rent from Exceed Education to Ms Sylvester. Exceed Education sought an order that Ms Sylvester pay its costs on the ordinary basis, arguing that it was successful in establishing that consent was unreasonably withheld. Conversely, Ms Sylvester sought an order that the plaintiff pay 50% of her costs on the ordinary basis, or alternatively, that there be no order as to costs. Ms Sylvester contended that the case involved two distinct disputes, with each party prevailing on one issue, and that the provisions of the Lease should be considered in determining the costs order.

The court considered the principles governing costs in light of the prior judgment and the arguments presented by both parties. It was noted that costs are within the discretion of the court, and ordinarily follow the event unless another order is deemed appropriate. The Lease provisions were acknowledged as an important factor in the exercise of the court’s discretion, although they do not override the court’s discretion. The court also recognised that the proceedings involved two distinct issues, with each party succeeding on one. Given these considerations, the court concluded that it was not appropriate to make a costs order in favour of either party.

In conclusion, the court determined that there should be no order as to costs, meaning that each party would bear its own costs of the proceedings. This decision reflects the mixed outcome of the litigation, where each party succeeded on one of the two issues, and takes into account the contractual provisions and the discretionary nature of costs orders.