Sanders v Constantine - [2006] NSWSC 534

CITATION: Sanders v Constantine [2006] NSWSC 534
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25/05/06

JUDGMENT DATE :
25 May 2006

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 05/25/2006

DECISION: I order that there be no order as to the costs of the proceedings with the intent that each party bear his or her own costs. Otherwise I order that the summons be dismissed.

CATCHWORDS: COSTS – Plaintiff and defendant in dispute over possession of retail premises – Mediation pursuant to Retail Leases Act 1994 (NSW) – Mediation successful in resolving dispute – Plaintiff sought order for costs – Defendant countered with Calderbank letter – Offer open for less than twenty-four hours – Offer not accepted – Defendant sought order for costs on indemnity basis – Incurrence of further costs by both parties contrary to s 56 Civil Procedure Act 2005 (NSW) – Usual principle that Court not to order costs where proceedings not determined on merits and no capitulation – Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia - Ex parte Lai Qin (1987) 186 CLR 621 considered – Whether usual principle applicable – Principle applicable – No order as to costs made.

LEGISLATION CITED: Retail Leases Act 1994 (NSW)
Civil Procedure Act 2005 (NSW)

CASES CITED: Calderbank v Calderbank [1976] Fam 93
Re The Minister For Immigration And Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1987) 186 CLR 621

PARTIES: Basil Sanders
v
Mary Constantine

FILE NUMBER(S): SC 2724/06

COUNSEL: Plaintiff: J O'Connor
Defendant: T Edwards (solicitor)

SOLICITORS: Plaintiff: Boyd House & Partners
Defendant: Truman Hoyle Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Thursday, 25 May 2006

2724/06 Basil Sanders v Mary Constantine

JUDGMENT

1 HIS HONOUR: These proceedings were commenced on 12 May 2006 when an application was made ex parte to the duty judge for an order restraining the defendant from taking or keeping possession of cafe premises in Burton Street, Darlinghurst. It appears that the plaintiff is an assignee of a lease of those premises, which are a retail shop within the meaning of the Retail Leases Act 1994 (NSW). In April 2006, the defendant lodged an application for mediation pursuant to that Act. The matter was listed for mediation on 17 May 2006. The application was brought urgently on 12 May 2006 because the plaintiff said that the defendant was attempting to change the locks on the premises to exclude him from trading. An injunction was made ex parte as sought, on the basis of the plaintiff giving the usual undertaking as to damages. The mediation proceeded on 17 May 2006 and an agreement for the resolution of the dispute in relation to the non-payment of rent was reached.

2 That should have been the end of the matter so far as the expenditure of costs in these…

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: [2006] NSWSC 534
Decision Date: 25 May 2006

CaseChat Overview and Summary

Sanders was the plaintiff and Constantine was the defendant in a dispute over the possession of a retail premises. The dispute was heard by the Local Court of New South Wales. The plaintiff sought an order for costs after mediation under the Retail Leases Act 1994 (NSW) was successful in resolving the dispute. The defendant countered this by arguing that the plaintiff had received a Calderbank letter offering to settle the dispute for less than what was ultimately agreed upon in mediation, which was not accepted. The defendant sought an order for costs on an indemnity basis, arguing that the incurrence of further costs by both parties was contrary to section 56 of the Civil Procedure Act 2005 (NSW). The usual principle is that the Court should not order costs where the proceedings are not determined on the merits and there is no capitulation, as per Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia - Ex parte Lai Qin (1987) 186 CLR 621. The court considered whether this principle was applicable in this case. The court found that the usual principle was applicable and made no order as to costs.

Orders