Scarcella v Linknarf Management Services Pty Ltd (In Liq)

[2005] NSWSC 263

CITATION:	Scarcella v Linknarf Management Services Pty Ltd (In Liq) [2005] NSWSC 263
HEARING DATE(S):	24 February 2005
JUDGMENT DATE :	24 February 2005
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Order for costs made.

CATCHWORDS:	PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Success of different parties on distinct claims.
CASES CITED:	Scarcella v Linknarf Management Services Pty Limited (In Liq) [2004] NSWSC 360 Scarcella v Linknarf Management Services Pty Limited (In Liq) [2004] NSWSC 1168
PARTIES:	Francesco Scarcella (1P & 1XD) Helen Scarcella (2P & 2XD) Rocky Scarcella (3P & 3XD) Linknarf Management Services Pty Ltd (In Liq) (1D & 1XC) Ronald George Davies (2D) Linknarf Limited (In Liq) (2XC)
FILE NUMBER(S):	SC 2235/02
COUNSEL:	V R W Gray (Ps & XDs) D B Studdy (Ds & XCs)
SOLICITORS:	Corporate & Civil Legal (Ps & XDs) Gilbert & Tobin (Ds & XCs)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 24 FEBRUARY 2005

2235/02 FRANCESCO SCARCELLA & ORS v LINKNARF MANAGEMENT SERVICES PTY LIMITED (In Liq) & ORS

JUDGMENT

1 HIS HONOUR: This morning short minutes of order have been brought in before me consequent upon my judgment of 3 December 2004: Scarcella v Linknarf Management Services Pty Limited (In Liq) [2004] NSWSC 1168. This was the second trial that took place in these proceedings. The first trial was decided by my judgment of 30 April 2004: Scarcella v Linknarf Management Services Pty Limited (In Liq) [2004] NSWSC 360. In relation to that judgment, orders were made on 5 May 2004.

2 In the first trial the plaintiffs were substantially successful, in that it was found in their favour that the lease was not terminated at an early date by the tenant by acceptance of a repudiation by the landlords. Equally, the plaintiffs, as cross defendants, succeeded on a cross claim. In the cross claim there were two cross claimants, one of which was the defendant, but the other was not otherwise a party to the proceedings. So it will be appropriate to make a separate order for the costs of the cross claim.

3 The second trial concerned the issue of whether the lease was, at a later date, repudiated by the plaintiffs so as to bring to an end the obligation of the defendant to pay rent. There was a contest about six alternative dates which were put. In respect of five of these, the plaintiffs succeeded, but they lost the contest concerning the sixth. The judgment which will be entered, will be in respect of rent up to the last alternative contested date for repudiation.

4 The first defendant puts that what should flow from this is that it should be ordered to pay 50 per cent of the plaintiffs' costs of its claim overall. Alternatively, if I am not prepared to take that approach, it puts that it should be ordered to pay 50 per cent of the plaintiffs' costs, after 5 May 2004. That fairly closely coincides with the plaintiffs' proposal, which is that they should have the costs of the proceedings up to and including 5 May 2004 and either 67 per cent or 50 per cent of the plaintiffs' costs of the proceedings from and after 5 May 2004.

5 I do not accept the first defendant's approach of a global award of 50 per cent. This means that the plaintiffs should have their costs up to and including 5 May 2004. In all the circumstances of the case, it is my view that the plaintiffs should have 50 per cent of their costs from and after 5 May 2004.

6 There will be orders in accordance with the short minutes initialled by me and placed with the papers.

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