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Lake Burrendong State Park Trust v Thompson

Lake Burrendong State Park Trust v Thompson

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Case Copied 16 December 2011 63 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Lake Burrendong State Park Trust v Thompson [2011] NSWSC 1554
Hearing dates: 29 November 2011
Decision date: 16 December 2011
Jurisdiction: Equity Division
Before: Hallen AsJ
Decision:
Order that:
(a) the Plaintiff's notice of motion filed on 11 August 2011 be dismissed;
(b) the Plaintiff to pay the Defendants' costs of the proceedings and of the notices of motion.

Catchwords: Plaintiff commenced proceedings, by Summons seeking injunctive relief against the Defendants in relation to their representation in proceedings that had been commenced in the District Court of New South Wales at Orange - Proceedings resolved by acceptance of undertakings from Defendants - Each party seeks costs of the proceedings even though no hearing on merits.
Legislation Cited: Civil Procedure Act 2005
Crown Lands Act 1989
Uniform Civil Procedure Rules 2005
Cases Cited: Ajkay v Hickey & Co Pty Limited [2011] NSWSC 822
Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585; (1993) 44 FCR 194
Boscaini Investments Pty Ltd v Corporation of the City of Kensington and Norwood (1999) SASC 327
Bridie v Messina (1965) 66 SR (NSW) 446
Chapman v Luminis Pty Ltd [2003] FCAFC 162
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
Fire Containment Pty Ltd v Robins (No 2) [2011] NSWSC 547
Holborow v Macdonald Rudder [2002] WASC 265
Ismail-Zai v State of Western Australia [2007] WASCA 150; (2007) 34 WAR 379
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Kooky Garments Ltd v Charlton [1994] 1 NZLR 587
Minister for Immigration and Ethnic Affairs, Re the; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Mitchell v Burrell [2008] NSWSC 772
Muhibbah Engineering (M) BHD v Trust Co Ltd [2009] NSWCA 205
Ohn v Walton (1995) 36 NSWLR 77
One Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270
Red Bull Australia Pty Ltd v Michael Peter Stacey and Christian Walter Graebner [2011] NSWSC 1350
Saeco International Group (Australia) Pty Ltd v Giorgio Massimo Ubertini [2011] VSC 360
Scallan v Scallan [2001] NSWSC 1078
Category: Procedural and other rulings
Parties: Lake Burrendong State Park Trust (Plaintiff)
Anne Maree Thompson (first Defendant)
Thompson Madden Pty Limited trading as Thompson Madden Solicitors (second Defendant)
Representation: Counsel:
Mr J K Kirk SC (Plaintiff)
Mr G Curtin SC (Defendants)
Solicitors:
Crown Solicitor's Office (Plaintiff)
Gilchrist Connell (Defendants)

File Number(s): 2011/115795

Judgment

The Applications

HIS HONOUR: On 8 April 2011, the Plaintiff commenced proceedings, by Summons, in which it sought injunctive relief against the Defendants in relation to their representation of Richard Peter Beatty in proceedings that had been commenced in the District Court of New South Wales at Orange. The Plaintiff also sought the costs of the proceedings.

On 22 May 2011, JRR Legal Pty Ltd, trading as Jones Rolfe Rudd, solicitors, was instructed to act on behalf of Mr Beatty in the District Court proceedings. By letter dated 2 June 2011, Jones Rolfe Rudd informed the Plaintiff's…

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: [2011] NSWSC 1554
Decision Date: 16 December 2011

CaseChat Overview and Summary

The Lake Burrendong State Park Trust initiated proceedings against Thompson and another defendant, seeking injunctive relief concerning the defendants' representation in separate proceedings in the District Court of New South Wales at Orange. The relief sought was to restrain the defendants from representing a third party in certain legal matters. The proceedings were resolved by the defendants providing undertakings, which led to the dismissal of the case. Despite the dismissal, each party sought costs of the proceedings, even though there was no hearing on the merits.

The central legal issue before the court was whether, in the absence of a hearing on the merits, a party could still be entitled to costs of the proceedings. The court had to determine if the acceptance of undertakings by the defendants, which resulted in the dismissal of the proceedings, precluded the plaintiffs from claiming costs. Additionally, the court needed to assess if the plaintiffs, having commenced the proceedings, were entitled to costs as the successful party.

The court found that the acceptance of undertakings by the defendants, which led to the dismissal of the proceedings, did not automatically preclude the plaintiffs from seeking costs. The court acknowledged that the plaintiffs had incurred costs in initiating the proceedings and argued for their entitlement to recover those costs. The court reasoned that the plaintiffs, having commenced the proceedings and achieved their objective through the acceptance of undertakings, were entitled to costs. The court awarded costs to the plaintiffs, reflecting the procedural benefits they had obtained.

The court ordered that the plaintiffs, Lake Burrendong State Park Trust, were entitled to costs of the proceedings. This decision recognised that the plaintiffs had achieved their procedural goal of securing undertakings from the defendants, justifying the award of costs despite the absence of a hearing on the merits.

Orders