Shred Fast NSW v Frew

[2008] NSWSC 442

CITATION:	Shred Fast NSW v Frew [2008] NSWSC 442
HEARING DATE(S):	2 May 2008
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	2 May 2008
DECISION:	Injunctions granted. Defendant ordered to pay plaintiff's costs.
CATCHWORDS:	PROCEDURE - Injunctions - Continuing correspondence between plaintiff tenant and defendant landlord - Defendant changes locks excluding tenant from possession - Whether status quo should be maintained - Whether plaintiff should have costs.
PARTIES:	Shred Fast NSW Pty Ltd (Plaintiff) Robert Lindsay Frew (Defendant)
FILE NUMBER(S):	SC 2598/08
COUNSEL:	Mr R Weaver (Plaintiff)
SOLICITORS:	Rodd Peters Commercial, Media and European Lawyers (Plaintiff) Denese Vale & Associates (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 2 MAY 2008

2598/08 SHRED FAST NSW PTY LTD v ROBERT LINDSAY FREW

EX TEMPORE JUDGMENT

1 There is a dispute between the plaintiff as tenant and the defendant as landlord of premises the subject of a written lease. The locks to the premises were changed yesterday thereby excluding the plaintiff from occupation.

2 A number of notices to rectify have been served on the plaintiff by the defendant. They have been the subject of ongoing correspondence between the parties which is still continuing.

3 There was a suggestion that rent was in arrears and upon the plaintiff's being provided with access to the defendant's rent register, it appeared that there might have been a failure to pay an instalment of rent in 2006. That was rectified by the plaintiff paying an amount equivalent to that instalment.

4 One month's notice had been given of the intention of the defendant to change the locks. That notice was, however, in the context of continuing correspondence between the parties in an attempt to resolve the situation. A number of notices to quit were also served in that same context.

5 Clause 22.2 of the lease requires a party to a dispute to designate as its representative in negotiations relating to the dispute, a person with authority to settle the dispute. While the plaintiff made a designation, the person designated has not been involved in the ongoing correspondence between the parties. In any event, cl 22.1 provides that the clause does not apply where a party seeks urgent interlocutory relief.

6 In my view, in circumstances in which the correspondence between the parties with a view to resolving the issues has not concluded, I ought to preserve the status quo until a final hearing determines the issues by granting the plaintiff interlocutory relief.

7 If I failed to grant such relief it would be tantamount to my deciding the issues to be determined at trial for it would terminate the plaintiff’s possession of the premises.

8 As a grant of interlocutory relief I propose to make orders in terms of paragraphs 1 and 2 of the summons.

9 Upon the plaintiff by its counsel giving the usual undertaking as to damages, I make orders in terms of paragraphs 1 and 2 of the summons, adding to paragraph 2 the words "or until the order of the court". I stand the matter over before the Registrar at 9.30 am on Friday 9 May 2008.

10 This afternoon I have heard argument from both sides as to what I should do in relation to the costs of this morning's hearing, no order having been sought at that stage.

11 Both Mr Weaver who appears for the plaintiff and Mr Sharrock who appears for the defendant have returned to court this afternoon.

12 Mr Weaver submits that costs should follow the event under the ordinary rule and that his client should be entitled to an order that the defendant pay the costs. Mr Sharrock submits that in the short time that has been available, his client has not had the opportunity to determine whether or not it wishes to bring an application before 9 May 2008, the date to which I have stood the matter over before the Registrar.

13 It seems to me that the appropriate course is for me to follow the usual rule and make an order that the defendant pay the plaintiff's costs. The application was a discrete one and the plaintiff was successful. I see no reason to depart from the ordinary rule that costs follow the event.

14 Mr Sharrock has indicated that his client may wish to bring an application for an injunction prior to 9 May 2008. If his client does so and is successful then, no doubt, an application would be made for an order that the plaintiff pay the defendant’s costs of that application.

15 That does not alter the fact that on the application before me today, the plaintiff was successful.

16 I order the defendant to pay the plaintiff’s costs.

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