SE Ware Street Dev Pty Ltd v Kwik Flo Pty Ltd (No 2)

In the case of SE Ware Street Development Pty Ltd v Kwik Flo Pty Ltd (No 2), the plaintiff, SE Ware Street Development, sought relief from the Supreme Court of New South Wales against the defendant, Kwik Flo Pty Ltd, concerning the enforcement of a determination made under the Shop and Office Premises Act 1990 (NSW). The plaintiff sought to prevent the defendant from enforcing the SOPA determination and argued that the defendant's conduct was an abuse of process. Additionally, the plaintiff sought an order for the defendant to pay costs on an indemnity basis, arguing that the defendant's conduct warranted such an order.

The primary legal issues revolved around the assessment of costs and the proper allocation of those costs between the parties. The court needed to determine whether the plaintiff's conduct warranted indemnity costs, and if so, whether the plaintiff should be ordered to pay a portion of the defendant's costs. Another issue was whether the money paid into court as the "price of the injunction" should remain there while the defendant appeals, or if it should be released to the plaintiff.

The court found that the plaintiff's conduct, including the making of a Calderbank offer and the late raising of the argument regarding the defendant's abuse of process, did not warrant indemnity costs. It was held that the plaintiff had been successful in their claims, and there was no basis for ordering the plaintiff to pay a portion of the defendant's costs. Consequently, the costs were ordered on the ordinary basis. Regarding the payment of money out of court, the court ruled that the plaintiff, having been successful, should receive the money paid into court, and it should not remain there while the defendant appeals. Finally, the court issued an injunction restraining the defendant from enforcing the SOPA determination.