Hanave Pty Ltd v Nomad Sydney Pty Ltd - [2024] NSWSC 624

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:
JE Lazarus SC and Y Truong (Plaintiff)
G Sirtes SC and A Oakes (Defendant)
Solicitors:
Gilbert Mane (Plaintiff)
Peterson Haines (Defendant)

File Number(s): 2021/180550
Publication restriction: Nil

JUDGMENT

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

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).
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]’.
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.
The fire safety order required compliance by 20 July…

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.

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Details

Case: [2024] NSWSC 624
Decision Date: 24 May 2024

CaseChat Overview and Summary

The dispute between Hanave Pty Ltd and Nomad Sydney Pty Ltd was brought before the Supreme Court of Victoria. The case centred on a contractual disagreement between the two companies, which led to Hanave seeking damages for alleged breaches of contract by Nomad Sydney. The matter was eventually settled, and Hanave discontinued their proceedings without a final hearing on the merits. Following the discontinuation, Hanave sought an order for costs.

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