Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Hanave Pty Ltd v Nomad Sydney Pty Ltd [2024] NSWSC 624 Hearing dates: 8 December 2023 Date of orders: 24 May 2024 Decision date: 24 May 2024 Jurisdiction: Equity - Real Property List Before: Richmond J Decision: The summons be dismissed. No order as to costs with the intention that each party bear their own costs of the proceedings.
Catchwords: COSTS — party/party — general rule that costs follow the event — proceedings discontinued or dismissed — no final hearing on the merits
Legislation Cited: Civil Procedure Act 2005 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Knox Farms Pty Limited v Upper Lachlan Shire Council [2023] NSWSC 1601
Nabilov Eagleton [2021] NSWCA 232; (2021) 250 LGERA 89
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Category: Costs Parties: Hanave Pty Ltd (Plaintiff)
Nomad Sydney Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
JE Lazarus SC and Y Truong (Plaintiff)
G Sirtes SC and A Oakes (Defendant)
Gilbert Mane (Plaintiff)
Peterson Haines (Defendant)
File Number(s): 2021/180550 Publication restriction: Nil
JUDGMENT
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Before the Court are applications for costs by both parties in relation to proceedings with a protracted procedural history but which ultimately required no final relief from the Court.
Background
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The plaintiff, Hanave Pty Ltd (Hanave), is the owner of a property located at 16–28 Foster Street, Surry Hills and the landlord of the building constructed on it. The defendant, Nomad Sydney Pty Ltd (Nomad), formerly known as Wine Nomad Pty Ltd, is the lessee of the ground floor of that building from which premises it operates a restaurant under the name ‘Nomad’ (Nomad Premises).
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Clause 7(h) of the relevant lease required Nomad at its ‘own expense with all due despatch to make any repairs additions improvements or alterations and to do all other things necessary to comply with notice or order issued by any public authority relating to the premises and occasioned by the use of the premises’ by [Nomad] or by any ‘neglect or default of [Nomad]’.
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On 16 March 2021, the Council of the City of Sydney (Council) issued a fire safety order to Hanave under the Environmental Planning and Assessment Act 1979 (NSW) in relation to the building as a whole, but mostly relating to the Nomad Premises. This followed a fire at the Nomad Premises in September 2019, remediation works undertaken by Nomad during 2020 which Hanave alleged were unauthorised and which prompted a stop work order from the Council on 8 October 2020, and notification to Hanave from the Council on 23 December 2020 of its intention to issue a fire safety order.
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The fire safety order required compliance by 20 July…
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- Case
- [2024] NSWSC 624
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Hanave was entitled to an order for costs, despite the proceedings being discontinued without a final hearing. The court was required to consider the general rule that costs follow the event, and whether this principle applied in circumstances where the proceedings were discontinued without a hearing on the merits.
The court held that the general rule that costs follow the event does not necessarily apply in all circumstances where proceedings are discontinued or dismissed. The court noted that the general rule is not absolute and that it may be subject to exceptions in certain situations. In this case, the court found that the proceedings were discontinued without prejudice, and that there was no final hearing on the merits. The court considered that it would be unjust for Hanave to be awarded costs in these circumstances, as the proceedings had been discontinued without any findings being made on the merits of the case. Accordingly, the court dismissed Hanave's application for costs.
The court's decision in this case highlights the importance of considering the specific circumstances of each case when determining whether the general rule that costs follow the event applies. The court found that the principle was not absolute and that it may be subject to exceptions in certain situations. The court also noted that it is important to consider the reasons for the discontinuation of proceedings, and whether there has been a final hearing on the merits, when determining whether an order for costs should be made.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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