Legal Research
Cases
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (No 12)

Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (No 12)

Case [2019] NSWSC 916 17 July 2019

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health District v Macquarie Health Corporation Ltd (No 12) [2019] NSWSC 916
Hearing dates: 9 December 2016; 14 February 2017; 4, 20 October 2017; 13, 16, 17 November 2017; 18 December 2017; 9 May, 21 June 2019.
Decision date: 17 July 2019
Jurisdiction: Equity
Before: Kunc J
Decision:
Application to re-open refused; gross sum costs order made; parties to bring in short minutes to finalise damages enquiry

Catchwords:
COSTS - Party/Party - Bases of quantification - Factors relevant to the court’s discretion when quantifying costs – Whether gross sum costs order should be made where successful plaintiff was liable to defendant under several interlocutory costs orders – Civil Procedure Act 2005 (NSW), s 98(4)(b)

COSTS - Party/Party - Exceptions to general rule that costs follow the event - Offers of compromise/Calderbank offers – Plaintiff succeeds on basis not pleaded at the time defendant rejected Calderbank offer – Plaintiff’s application for indemnity costs from date of Calderbank offer rejected

COSTS - Party/Party - General rule that costs follow the event - Proceedings discontinued or dismissed – Plaintiff (in effect cross-claimant) to pay defendant’s costs on the indemnity basis where claim not pressed after Court declines to deal with claim on the papers

DAMAGES - Measure and remoteness of damages in actions for tort - Measure of damages - Assessment of mesne profits for trespass by landlord against tenant where rights included 103 year lease to build and operate car park and private hospital – Damages assessed as at date cause of action arose

PROCEDURE - Judgments and orders - In general – Whether leave to reopen argument should be granted – Whether argument said to have been overlooked had been put
TORTS - Trespass - Trespass to land and rights of real property – Measure of damages – Trespass by landlord against tenant - Assessment of mesne profits where rights included 103 year lease to build and operate car park and private hospital – Damages assessed as at date cause of action arose
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300
Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420; [2011] NSWCA 342
Calderbank v Calderbank [1975] 3 All ER 333
Colgate-Palmolive Company v Cussons Pty Ltd [1993] 46 FCA 536; (1993) 46 FCR 225
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
El Ali v Tritton [2019] NSWCA 111
Hamod v State of New South Wales [2011] NSWCA 375
Hancock v Rinehart (Lump Sum Costs) [2015] NSWSC 1640
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District; Sydney Local Health…

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 Macquarie International Health Clinic Pty Ltd v Sydney Local...

Details

AGLC: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (No 12) [2019] NSWSC 916
Case: [2019] NSWSC 916
Decision Date: 17 July 2019

CaseChat Overview and Summary

Macquarie International Health Clinic Pty Ltd (MHIC) was the plaintiff and Sydney Local Health District (SLHD) was the defendant in a dispute before the Supreme Court of New South Wales. MHIC brought an action against SLHD seeking damages for trespass to land and rights of real property. The dispute centred on the assessment of mesne profits for the trespass by the landlord against the tenant, where the tenant's rights included a 103-year lease to build and operate a car park and private hospital. The damages were assessed as at the date the cause of action arose. The court also considered the costs incurred in the litigation, including whether an indemnity costs order should be made and whether leave to reopen argument should be granted.

The legal issues in the case included the proper basis for quantifying costs where the successful plaintiff was liable under several interlocutory costs orders, the factors relevant to the court's discretion when quantifying costs, and whether indemnity costs should be awarded when the plaintiff succeeds on a basis not pleaded at the time the defendant rejected a Calderbank offer. The court was also asked to determine whether leave should be granted to reopen argument where an argument had not been put or was said to have been overlooked.

The court found that the measure of damages for the trespass was to be assessed as at the date the cause of action arose. In relation to costs, the court held that the general rule that costs follow the event applied, and the plaintiff was liable for the defendant's costs on the indemnity basis. The court also held that indemnity costs should not be awarded where the plaintiff succeeds on a basis not pleaded at the time the defendant rejected a Calderbank offer. The court further found that leave to reopen argument should not be granted where an argument had not been put or was said to have been overlooked.

The final orders of the court included that damages were to be assessed as at the date the cause of action arose and that the plaintiff was to pay the defendant's costs on the indemnity basis. The court also dismissed the plaintiff's application for indemnity costs from the date of the Calderbank offer and refused leave to reopen argument.

Orders