Sarkis v TFM Rushcutters Bay Land Pty Ltd

[2021] NSWSC 1290

Supreme Court

New South Wales

Medium Neutral Citation:	Sarkis v TFM Rushcutters Bay Land Pty Ltd [2021] NSWSC 1290
Hearing dates:	On the papers
Date of orders:	12 October 2021
Decision date:	12 October 2021
Jurisdiction:	Equity
Before:	Darke J
Decision:	Orders that the costs of each party be that party’s costs on the Cross-Claim.
Catchwords:	COSTS – motion for leave to file cross-claim – objection taken to particular aspects of form of pleading – mixed success – neither party can be truly regarded as winner – parties acted reasonably – order made that costs of motion be costs in the cause
Category:	Costs
Parties:	George Sarkis (Plaintiff/First Cross-Defendant) TFM Rushcutters Bay Land Pty Ltd (First Defendant/Second Cross-Defendant) ALS256 Pty Ltd (Second Defendant/Cross-Claimant
Representation:	Counsel: Mr D Pritchard SC with Mr J P Nathan (Plaintiff/First Cross-Defendant) Mr V Bedrossian (Second Defendant/Cross-Claimant) Solicitors: Effective Legal Solicitors (Plaintiff/First Cross-Defendant) Summer Lawyers (Second Defendant/Cross-Claimant)
File Number(s):	2021/84135
Publication restriction:	None

Judgment

1. By a Notice of Motion filed on 17 August 2021, the second defendant sought leave to file a Cross-Claim against the plaintiff and the first defendant. Prior to the filing of the motion, discussions were held between the legal representatives of the second defendant and the plaintiff in relation to the proposed pleading. It is apparent that the plaintiff did not object to the principle that the second defendant ought be able to file a Cross-Claim against him. However, objection was taken to a number of aspects of the form of pleading. Some of the plaintiff’s objections were accommodated by the making of changes to the proposed pleading, but a few objections remained at the time the motion was filed.

2. The motion was dealt with on the papers. The second defendant filed written submissions on 27 August 2021 and 2 September 2021 (in reply). The plaintiff filed written submissions on 2 September 2021. The first defendant did not play any part in relation to the motion.

3. The plaintiff’s submissions identified a number of objections to five particular paragraphs (or sub-paragraphs) of the proposed Cross-Claim. The second defendant, in its submissions in reply, offered to delete one of those paragraphs (paragraph 44).

4. On 14 September 2021 the Court decided that leave to file the proposed Cross-Claim would not be given at that stage. In brief reasons provided to the parties it was stated that leave would be given if a lack of clarity in respect of paragraph 42(b) of the proposed pleading was rectified.

5. That matter was attended to by the second defendant, to the satisfaction of the plaintiff, and an order was made by consent on 17 September 2021 granting leave to file a Cross-Claim in a certain form.

6. Unfortunately, the parties were not able to agree on the costs of the motion. Further brief written submissions were filed.

7. The second defendant submits that the appropriate order for the costs of the motion is that they be the parties’ costs in the cause, the cause being the Cross-Claim. The plaintiff seeks his costs on the basis that he was largely successful on the discreet objections he took to the form of pleading.

8. I think that the appropriate order is that sought by the second defendant. The success claimed by the plaintiff is measured in part by the fact that the second defendant made concessions prior to the filing of the motion. If the matter is viewed from the point when the motion was filed, the position is rather that the plaintiff succeeded on one point (paragraph 42(b)), was unsuccessful on another (paragraph 43), and the second defendant agreed to delete another paragraph (paragraph 44) to save a need to argue further about it. Viewed in that way, neither side can be truly regarded as the winner of the event. Moreover, I think that both sides acted reasonably, including in the discussions before the motion was filed as well as following the filing of the motion. It was also reasonable for the second defendant, after having participated in constructive discussions with the plaintiff, to file the motion itself in order to bring the matter to a conclusion. It seems to me that in these circumstances the costs of each party should be that party’s costs on the Cross-Claim. The Court will so order.

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Decision last updated: 12 October 2021