Hemer Pty Ltd v Benni (No 3) - [2011] SASCFC 144

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HEMER PTY LTD v BENNI & ORS (No 3)
[2011] SASCFC 144
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Sulan)
30 November 2011
PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT - COSTS OF ISSUES
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - CONDUCT OF PARTIES - OTHER CONDUCT
Reasons for ruling on costs – ruling relates to an appeal concerning the purported forfeiture of a 99 year lease for peppercorn rent over land in suburban Adelaide – where trial Judge refused to make declarations sought or grant any other relief – where on appeal appellant successful on some issues and unsuccessful on others – consideration of the conduct of the appellant both at trial and on appeal.
Held: appellant to recover one-quarter of its costs of the trial and on appeal.
Landlord and Tenant Act 1936 (SA) s 10, referred to.
Hemer Pty Ltd v Benni [2011] SASCFC 35, considered.

HEMER PTY LTD v BENNI & ORS (No 3)
[2011] SASCFC 144
Full Court Doyle CJ, Gray and Sulan JJ
THE COURT:

On 15 July 2011, an order was made that the appeal be allowed, the orders of the trial Judge be set aside and a number of orders be substituted. One of those orders was that Marnie Benni, Martin Ridge and Cherise Esme Collins, the defendants and respondents, pay Hemer Pty Ltd, the plaintiff and appellant one-quarter of its costs of the trial and of the appeal. Our reasons for the costs order follow.
This ruling on costs relates to an appeal concerning the purported forfeiture of a 99 year lease for peppercorn rent over land in suburban Adelaide. The lessee of the land, Hemer, sought at trial declarations, inter alia, concerning the interpretation of a convenant of the lease relating to rates and taxes. Hemer also sought relief against forfeiture. The trial Judge refused to make any declarations or grant any other relief.[1]
[1] Hemer Pty Ltd v Benni [2010] SASC 242.
The background to the dispute and the proceedings is dealt with in some detail in the earlier decision of this Court in Hemer Pty Ltd v Benni,[2] and we adopt the background as there stated. In that decision, the majority, Gray and Sulan JJ, determined that the rates and taxes payable under the lease are to be based on the value of the leased land, as determined by the Valuer-General; that is, they had been incorrectly calculated and were therefore unenforceable. Gray and Sulan JJ further concluded that letters sent by the lessors, the defendants and respondents, to the lessee demanding payment for rates and taxes under the lease did not satisfy the requirements of section 10 of the Landlord and Tennant Act 1936 (SA). To this end Gray and Sulan JJ determined that it would be contrary to the scheme of the legislation to permit re-entry without…

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 Hemer Pty Ltd v Benni (No 3)

Details

AGLC: Hemer Pty Ltd v Benni (No 3) [2011] SASCFC 144
Case: [2011] SASCFC 144
Decision Date: 30 November 2011

CaseChat Overview and Summary

Hemer Pty Ltd (the appellant) appealed to the Full Court of the Supreme Court of South Australia against a decision of a trial judge who had refused to make declarations sought by the appellant or grant any other relief concerning the purported forfeiture of a 99-year lease over land in suburban Adelaide. The respondent was Benni.

The central legal issues before the Full Court concerned the appropriate orders for costs, particularly in light of the appellant's partial success on appeal. The court was required to consider whether to depart from the general rule that costs follow the event, taking into account the conduct of the appellant both at the trial and during the appeal proceedings.

The court acknowledged that the appellant had been successful on some issues raised in the appeal but unsuccessful on others. In determining the costs orders, the court considered the overall conduct of the appellant. The court ultimately made orders that reflected the mixed success of the appellant, indicating a departure from the standard costs order due to the specific circumstances and conduct of the parties.

Orders