Mamfredas Investment Group Pty Limited (formerly known as MAM Marketing Pty Ltd) v PropertyIT and Consulting Pty Limited

The case involved a dispute over a restriction on the use of parking spaces in a strata building. The plaintiff, Mamfredas Investment Group Pty Limited, sought to extinguish the restriction under the Conveyancing Act 1919 section 89, which allows for the modification or extinguishment of certain covenants and other restrictions on the use of land. The restriction in question limited the use of the parking spaces to owners or occupiers of an adjoining building. The adjoining building was not developed at the time the restriction was registered, but it was later built with its own parking spaces. The plaintiff had negotiated with the defendants, PropertyIT and Consulting Pty Limited, for a considerable time before initiating legal proceedings. The defendants filed submitting appearances, reserving their rights to contest the costs of the proceedings. The primary legal issue was whether the plaintiff, having been successful in its application, should be required to pay the defendants' costs or if the defendants should pay the plaintiff's costs on an indemnity basis. An additional consideration was whether the proceedings should have been commenced ex parte due to the defendants' submissions.

The court examined the nature of the submissions filed by the defendants, which reserved their rights "save as to costs." The court noted that the defendants had not contested the merits of the plaintiff's application but had reserved their rights on the issue of costs. The court considered whether the defendants' submissions constituted a "submitting appearance" under the Uniform Civil Procedure Rules, which would allow them to contest the costs without contesting the merits of the case. The court also considered the principle that the party who benefits from a legal proceeding should bear the costs of that proceeding, as well as the defendants' conduct in delaying the proceedings.

The court concluded that the defendants' submissions amounted to a submitting appearance and that they were therefore entitled to contest the issue of costs. However, the court found that the defendants should pay the plaintiff's costs on an indemnity basis. The court held that the defendants' conduct in delaying the proceedings and reserving their rights on costs without contesting the merits was unreasonable and contributed to the costs incurred by the plaintiff. The court further held that the proceedings should not have been commenced ex parte, as the defendants had effectively reserved their rights on costs.

The court ordered that PropertyIT and Consulting Pty Limited pay the costs of Mamfredas Investment Group Pty Limited on an indemnity basis. The court further ordered that the restriction on the use of the parking spaces be extinguished.