King v Flowers - [2014] NSWSC 1266

Supreme Court

New South Wales

Medium Neutral Citation: King v Flowers [2014] NSWSC 1266
Hearing dates: 25/08/2014
Decision date: 19 September 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
Order the defendant to pay the plaintiff's costs of the proceedings

Catchwords: COSTS - general rule that costs follow the event; exceptions to the - possession proceedings - tenancy - proceedings initiated by landlord - claim for possession - defendant vacated property - Notice of Discontinuance filed by plaintiff - whether discretion should be exercised to make costs order in favour of plaintiff Civil Procedure Act 2005, s 98 - Uniform Civil Procedure Rules 2005, r 42.19 - whether sound positive ground or good reason for departing from ordinary course - practical success of plaintiff - proceedings properly initiated - repeated attempts prior to initiating proceedings to have defendant vacate premises - valid notice of termination - unreasonable conduct of defendant
Legislation Cited: Civil Procedure Act 2005
Residential Tenancy Act 2010
Uniform Civil Procedure Rules 2005
Cases Cited: Australiawide Airlines Limited v Aspirion Pty Limited [2006] NSWCA 365
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Cummins v Australian Jockey Limited [2009] NSWSC 254
Garwolin Nominees v Statewide Building Society [1984] VR 469
Parlby v Blair [2013] NSWSC 100
Category: Costs
Parties: Margaret Helen King (P)
Mark Flowers (D)
Representation: Counsel:
D Neggo (P)
In person (D)

File Number(s): 2014/181145

Judgment

On 18 June 2014, Margaret Helen King, the plaintiff, commenced proceedings by Statement of Claim against Mark Flowers, the defendant.

The Plaintiff's Claim

The Statement of Claim claimed an order for possession of a commercial property at Bowral ("the property"). As well, the Statement of Claim particularised a claim for damages for trespass and sought an order for mesne profits until the possession of the property was given up.

The Statement of Claim pleaded that the plaintiff was the registered proprietor of the property and that, in December 2012, the plaintiff as landlord had entered into a lease for a period of 12 months over the property with the defendant, who was the tenant.

The Statement of Claim pleaded various conditions of the lease and pleaded that, as and from 8 December 2013, by reason of the expiration of the lease, and the fact that the plaintiff allowed the defendant to continue to occupy the property, the defendant became a monthly tenant. As a consequence, it was alleged that either the plaintiff or the defendant could end the tenancy by giving one month's written notice to the other.

It was alleged that on 1 April 2014, the plaintiff gave the defendant a Notice of Termination of Tenancy and that, as a consequence, the defendant's monthly tenancy came to an end on 7 May 2014.

The Statement of Claim pleaded that the defendant had failed to deliver up possession of the property and had failed to make relevant payments of rent, and further had allowed the defendant's goods to remain on the property.

The Defendant's Response

The defendant,…

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 King v Flowers

Details

AGLC: King v Flowers [2014] NSWSC 1266
Case: [2014] NSWSC 1266
Decision Date: 19 September 2014

CaseChat Overview and Summary

The matter of King v Flowers involved a dispute between the landlord and tenant over a claim for possession of a rental property. The plaintiff, King, sought possession of the property and subsequently filed a Notice of Discontinuance after the defendant, Flowers, vacated the premises. The primary issue before the court was whether the plaintiff was entitled to costs, despite the proceedings being discontinued by the plaintiff. The court had to determine whether there were any exceptions to the general rule that costs follow the event, particularly in the context of possession proceedings and whether the plaintiff's practical success warranted an order for costs in their favour.

The court examined the circumstances leading up to the proceedings and the actions of both parties. The court noted that the proceedings were properly initiated by the plaintiff, who had made repeated attempts to have the defendant vacate the property. The plaintiff had provided a valid notice of termination, and the defendant's conduct was deemed unreasonable. The court considered the provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, specifically section 98 and rule 42.19, which address the discretion to make a costs order in the plaintiff's favour when there is sound positive ground or good reason for departing from the ordinary course of events. The court found that the plaintiff's practical success and the defendant's unreasonable conduct provided sufficient grounds for exercising this discretion.

In light of the above, the court exercised its discretion to make a costs order in favour of the plaintiff. The court held that the plaintiff's practical success in obtaining possession of the property, coupled with the defendant's unreasonable conduct, constituted sound positive ground for departing from the usual course of events. The court concluded that it was appropriate to order the defendant to pay the plaintiff's costs of the proceedings. The final orders of the court included a declaration that the defendant was liable to pay the plaintiff's costs of the proceedings, which were to be assessed if not agreed upon by the parties.

Orders