Lavender View v North Sydney Council (No 2) - [1999] NSWSC 775

CITATION: Lavender View v North Sydney Council (No 2) [1999] NSWSC 775 revised - 26/06/2000

CURRENT JURISDICTION: Construction

FILE NUMBER(S): 55045/1997

HEARING DATE(S): 30/07/99

JUDGMENT DATE:
4 August 1999

PARTIES :

Lavender View Regency Pty Limited - Plaintiff
North Sydney Council - Defendant

JUDGMENT OF: Rolfe J

COUNSEL : Mr T.J. Davie - Plaintiff
Mr I.R. Pike - Defendant

SOLICITORS: Norton Smith/Coudert Brothers - Plaintiff
Phillips Fox - Defendant

CATCHWORDS: Costs

DECISION: Plaintiff to pay the defendant's costs of the inquiry into damages; Plaintiff sued defendant for negligence; Order made pursuant to Part 32 rule 2 that liability be determined prior to damages.; Defendant conceded liability and an order made that it should pay the plaintiff's costs to that point; On the inquiry as to damages held that the plaintiff had not established causation and only entitled to a relatively small and conceded amount; Held: on the question of damages and in the particular circumstances the defendant was the "generally successful" party and the plaintiff should pay its costs; Oshlack v Richmond River Council (1998) 72 ALJR 578; Windsurfing International Inc v Petit (1987) AIPC 37861 and Fexuto Pty Limited v Bosnjak Holdings Pty Limited & Ors (No 3) (Young J - 10 December 1998 - unreported) applied.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CONSTRUCTION LIST

ROLFE J

WEDNESDAY, 4 AUGUST 1999

55045/1997 - LAVENDER VIEW REGENCY PTY LIMITED v NORTH SYDNEY COUNCIL (NO 2)

JUDGMENT

HIS HONOUR:
Introduction

1 On 14 July 1999 I held that the plaintiff was entitled to judgment in the sum of $224,321.51, being the then agreed amount for costs wasted in respect of certain Class IV proceedings in the Land and Environment Court together with agreed interest to 1 June 1999, and interest thereon from 1 June 1999 to 14 July 1999. The defendant agreed to pay this amount unconditionally, in the sense that the judgment was to include this amount irrespective of any other findings. I ordered that costs and interest be reserved for future agreement or argument. Subsequently, it was agreed that the additional interest was $2,704.15, so that on the figures then agreed, there would have been judgment for the plaintiff, inclusive of interest to the date of judgment, in the sum of $227,025.66. However, when the matter was mentioned on 30 July 1999 I was informed that the parties may well agree on another figure but, on 2 August 1999, I was informed that the agreed figure is $227,025.66. The remaining issue is what order should be made in relation to costs, each party contending that the other should pay its costs of the proceedings, in so far as a costs’ order has not been made previously. It must be unusual to find a case in which a defendant, which has suffered judgment in such a sum, seeks an order that the apparently successful plaintiff should not only be deprived of a costs’ order but should pay the apparently unsuccessful defendant’s costs. Accordingly, the particular circumstances…

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: [1999] NSWSC 775
Decision Date: 4 August 1999

CaseChat Overview and Summary

The case between Lavender View Pty Ltd and North Sydney Council concerns a dispute over the costs incurred in the enforcement of a court order. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the council was entitled to recover the costs of enforcing a court order against the company, which had been previously ordered to pay costs in relation to the enforcement of a previous court order.

The court examined the relevant legislative provisions and the case law governing costs orders in such circumstances. It found that the council was entitled to recover the costs of enforcing the original court order, as the relevant legislation provided for such recovery. The court also considered the principle of fairness, noting that the company had been given multiple opportunities to comply with the court orders and had failed to do so, resulting in the council incurring additional costs.

The court ultimately ruled in favour of the council, determining that it was entitled to recover the costs of enforcing the court order. The court emphasised the importance of compliance with court orders and the need for parties to bear the costs of their own non-compliance. The court ordered Lavender View Pty Ltd to pay the costs of the council in enforcing the original court order, as well as the costs of the current proceedings. This decision reinforces the principle that parties must bear the costs of their own non-compliance with court orders and highlights the importance of adhering to court directions in legal proceedings.

Orders