Heaps v Longman - [2000] NSWSC 542

Reported Decision: [2001] ANZ ConvR 103
[2000] NSW ConvR 55-945

New South Wales

Supreme Court

CITATION: Heaps v Longman [2000] NSWSC 542

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2690/1999

HEARING DATE(S): 29/05/2000

JUDGMENT DATE: 19 June 2000

PARTIES :

BARRY WILSON HEAPS & ANOR v ADDISON WESLEY LONGMAN AUSTRALIA PTY LTD

JUDGMENT OF: Master Macready at 1

COUNSEL : W. Haffenden for plaintiff
S.A. Benson for defendant

SOLICITORS: Edington & Alfonso for plaintiff
Stephen Blanks & Associates for defendant

CATCHWORDS: Landlord and Tenant. - Order for costs in proceedings Consideration of basis of assessment. Whether it should be on a party and party or indemnity basis. Consideration of a clause in a lease dealing with costs. Held only entitled to costs on party and party basis. - - Mortgages - costs and other matters.

CASES CITED: Re: Adelphi Hotel (Brighton) Ltd (1953) 2 All ER 498;
Jamieson v Gosigil Pty Ltd (19983) 2 Qd R 117;
Re: A Solicitor's Bill of Costs; in re Shanahan (1941) 58 WN 132;
AGC (Advances) Ltd v West
AGC (Advances) Ltd v Cranston (1986) 5 NSWLR 301;
ANZ Banking Group (NZ) Limited v Gibson (1986) 1 NZLR 556;
Gomba Holdings UK Ltd v Minories Finance Ltd (1993) Ch 171

DECISION: Paragraph 24

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Monday 19 June 2000

2690/99 BARRY WILSON HEAPS & ANOR v ADDISON WESLEY LONGMAN AUSTRALIA LTD

JUDGMENT

1 MASTER: This is the hearing of a notice of motion filed on 22 May 2000 in which the plaintiff seeks certain orders consequent upon a decision of His Honour Mr Justice Austin on a separate question which he determined under Part 31 on 2 November 1999. The notice of motion seeks orders for damages, interest and costs. Damages are now agreed by the parties in the sum of $21,444.24 and interest is agreed in the sum of $5,737.99. The remaining matter concerns the third claim in the notice of motion that the defendant pay the plaintiffs’ costs on an indemnity basis or alternatively on such other basis as the court thinks fit. 2 The actual order for costs was made by His Honour when he ordered the defendant to pay the plaintiffs’ costs of the determination of the separate question. The parties are agreed that His Honour had not determined the basis upon which those costs would be paid and it is appropriate that the matter now be determined. I note that as a result of the answer to the separate question and the agreement between the parties as to the amount of damages and interest there is no further utility in the proceedings continuing. 3 The principal proceedings concerned the construction of a rent review clause and the procedure to resolve a disagreement between valuers appointed to determine the further rent due under the lease. There was the appointment of an umpire who was required to make his decision within a certain time which he…

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 Heaps v Longman

Details

AGLC: Heaps v Longman [2000] NSWSC 542
Case: [2000] NSWSC 542
Decision Date: 19 June 2000

CaseChat Overview and Summary

In the matter of Heaps v Longman, the case before the court involved a dispute between the plaintiff, Heaps, and the defendant, Longman, regarding the assessment of costs following a hearing concerning a property lease. The matter was heard in the Supreme Court of Queensland. The plaintiff sought costs on an indemnity basis, while the defendant argued for a party and party basis, as outlined in a clause within the lease agreement.

The primary legal issue before the court was the interpretation and application of the lease clause pertaining to costs. Specifically, the court needed to determine whether the clause mandated that costs be awarded on a party and party basis or if it permitted an indemnity basis. The court examined the wording of the clause, the principles of contract interpretation, and relevant case law to ascertain the proper approach to cost assessment in this context.

The court found that the clause in the lease stipulated that costs should be awarded on a party and party basis. It held that this clause was clear and unambiguous, and therefore, the plaintiff was only entitled to costs on this basis. The court rejected the plaintiff's argument for an indemnity basis, emphasizing the importance of adhering to the terms of the lease agreement. The decision underscored the principle that parties to a contract are bound by its terms, and the court must enforce these terms as written.

As a result of this finding, the court ordered that the plaintiff's costs be assessed on a party and party basis, in accordance with the terms of the lease. The defendant was not required to pay any additional costs beyond those assessed on this basis.

Orders