Sheridan v Tavener

[2000] NFSC 1

SUPREME COURT OF NORFOLK ISLAND

Sheridan v Tavener [2000] NFSC 1

ROBERT IAN SHERIDAN AND TRACY ANN SHERIDAN v JAMES MAURICE TAVENER AND ALEXIS LOUISE TAVENER

SC 6 of 1999

CORAM:      BEAUMONT CJ
DATE:           21 JANUARY 2000

IN THE SUPREME COURT          )

)          SC 6 of 1999

NORFOLK ISLAND  )

BETWEEN:ROBERT IAN SHERIDAN

First Plaintiff

ANDTRACY ANN SHERIDAN

Second Plaintiff

AND:JAMES MAURICE TAVENER

First Defendant

ANDALEXIS LOUISE TAVENER

Second Defendant

ORDERS

BEAUMONT CJ:
21 JANUARY 2000

THE COURT ORDERS THAT:

1.The defendants pay three-quarters of the costs of the plaintiffs to date.

IN THE SUPREME COURT          )

)          SC 6 of 1999

NORFOLK ISLAND  )

BETWEEN:ROBERT IAN SHERIDAN

First Plaintiff

ANDTRACY ANN SHERIDAN

Second Plaintiff

AND:JAMES MAURICE TAVENER

First Defendant

ANDALEXIS LOUISE TAVENER

Second Defendant

REASONS FOR JUDGMENT ON COSTS

BEAUMONT CJ:
21 JANUARY 2000

1. These are my reasons for judgment on the question of costs.  By orders made in the principal proceedings on 2 November 1999, I declared that cl 6 of the agreement was valid and enforceable in accordance with its terms.  I then ordered that the defendants be restrained in the terms of that provision.  I further reserved costs and specifically reserved liberty to any party to apply for costs by written submissions. 

2. I have stood over the plaintiffs’ claim for any further relief including damages, if any, or for loss of profits, as the case may be, at a date to be fixed.  In other words, to this point I have dealt only with the claim for injunctive relief.  Pursuant to leave reserved to apply for costs, each of the parties has filed and served written submissions which I have taken into account. 

3. I have come to the conclusion, for the reasons that I will shortly state, that I should order that the defendants pay three-quarters of the plaintiffs’ costs to date.  My reasons for this conclusion are as follows. 

4. By their statement of claim filed on 25 May 1999, the plaintiffs claimed an injunction in the terms of cl 6 of the agreement, but added the following claim:

   “… including but not limited to the conveying of person/s for reward for the purpose of conducting guided tours by motor vehicle in Norfolk Island.”

5. In other words, the claim made for relief in the statement of claim went beyond, although it included, a claim in the terms of cl 6 itself.  This claim was repeated before me in oral and written submissions in the application for final relief by way of injunction.  However, as I noted in my reasons for judgment dated 2 November 1999, I was of the opinion that the claim for relief should succeed on the limited basis I there mentioned;  that is to say, it should be in the terms of the contractual provision.  My discussion of that matter is dealt with in para 79 of those reasons, which I need not repeat here. 

6. In those circumstances, it seems to me that it is appropriate, first, that the plaintiffs should receive an award for their costs which reflect their substantial success in the proceedings;  but, secondly, that the court should take into account the circumstance that the plaintiffs’ claim was advanced on a far wider basis than the claim upheld.

7. In my opinion, a fair way of reflecting this outcome is to order, as I have said, that the plaintiffs receive three-quarters of their costs, and I so order. 

8. For completeness, I should mention two other matters that were raised by the plaintiffs in their written submissions.  First, costs were sought on an indemnity basis.  It is clear from the authorities that such an order should only be made in exceptional circumstances, and in my view there are no such circumstances evident here.

9. The second matter that I should mention for completeness is that the plaintiffs relied upon a Calderbank offer in their application for costs.  However, the terms of that offer were such that this is not a case where the Calderbank principle could have any relevant application.

10. The formal order of the Court, therefore, is that I order that the defendants pay three-quarters of the costs of the plaintiffs to date.

    ORDERS

    1.   The defendants pay three-quarters of the costs of the plaintiffs to date.

I certify that the preceding nine (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Beaumont.

Acting Associate:

Dated:             8 February 2000

Solicitor for the Plaintiffs:	Mr Brendan Manning of Tzovaras Yandell Lawyers
Counsel for the Defendants:	Mr Adrian Cook QC
Date of Hearing:	21 January 2000
Date of Judgment:	21 January 2000