South Sydney Council v Royal Botanic Gardens and Domain Trust (No 2)

[2000] NSWCA 242

CITATION:	South Sydney Council v Royal Botanic Gardens [No.2] [2000] NSWCA 242
FILE NUMBER(S):	CA 40741/97
HEARING DATE(S):	Decided on written submissions
JUDGMENT DATE:	31 August 2000
PARTIES :	South Sydney Council (Appellant) Royal Botanic Gardens & Domain Trust (Respondent)
JUDGMENT OF:	Spigelman CJ; Beazley JA; Fitzgerald JA

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	1539/96
LOWER COURT JUDICIAL OFFICER :	Hodgson CJ in Eq

COUNSEL:	A J Meagher SC / P Brereton (Appellant) J G Gleeson (Respondent)
SOLICITORS:	Pike Pike & Fenwick (Appellant) Minter Ellison (Respondent)
CATCHWORDS:	Costs - ND
DECISION:	Orders pronounced on 22 December 1999 in relation to costs varied. In lieu of the orders that the trial judge's orders in relation to costs be set aside and the Trust pay the costs of the proceedings including the appeal, the following orders are made ; 1.The orders made by Hodgson J on 10 October 1997 (other than the order that the Council pay the Trust’s costs of the Amended Notice of Motion filed on 29 August 1997) are set aside; 2. Order that the Trust pay 50% the Council’s costs of the trial (excluding the costs thrown away by vacation of the hearing on 28 May 1997 and the costs of the Amended Notice of Motion filed on 29 August 1997); 3. Order that the Trust pay 75% of the Council’s costs of the appeal

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40741/97
SC Eq 1539/96

SPIGELMAN CJ
BEAZLEY JA
FITZGERALD JA

THURSDAY 31 AUGUST 2000

SOUTH SYDNEY COUNCIL v ROYAL BOTANIC GARDENS AND DOMAIN TRUST [No.2]

JUDGMENT

1   THE COURT: In its judgment delivered on 22 December last year, the Court allowed the Council’s appeal, set aside the orders below, decreed specific performance of the parties’ agreement, and ordered the respondent Trust to pay the costs of the proceedings including the appeal. The orders have not been formally entered. 2   No separate consideration was given to costs at that time. The order made simply gave effect to the ordinary principle that costs follow the event. 3   The parties are now agreed that there should be variations to the Court’s orders that the orders below be set aside and that the Trust pay the costs of the proceedings including the appeal in order to permit the Trust to retain the benefit of costs orders in its favour in relation to interlocutory proceedings and an adjournment of the trial. 4   However, the Trust also submits that it should be ordered to pay only 50% of the Council’s costs of the trial (excluding the costs to be paid by the Council to the Trust in accordance with the preceding paragraph) and 75% of the Council’s costs of the appeal. The foundation for that submission is that, although it was successful overall, the Council raised issues on which it failed. 5   The Council’s principal claims, on which it succeeded, concerned the construction of a lease between the parties. As a result, the Trust must repay a substantial amount of rental which the Council had overpaid. The Council made an alternative claim for rectification of the lease, which was rejected. The Court also held that some of the overpayments of rent were not recoverable because of a compromise agreement which the parties had earlier made. Finally, the Court rejected the Council’s claim for damages, which substantially overlapped with its claim for repayment of overpaid rent. 6   The Council relied upon the statement by Mahoney JA in Waters v PC Henderson (Australia) Pty Ltd Unreported, NSW Court of Appeal (6 July 1994). that “… unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate those particular issues on which it was successful and those on which it failed.” Assuming in the Council’s favour that that is the appropriate test, the group of issues on which it failed is sufficiently separable from the issues on which it succeeded to justify an order that takes account of the circumstance that each party enjoyed partial success. 7   One course which might be adopted would be to order that:

(a) the Trust pay the Council’s costs of the proceedings (including the appeal) other than:

(i) the costs thrown away by the vacation of the hearing on 28 May 1997 and the costs of the Amended Notice of Motion filed on 29 August 1997, and

(ii) the costs in respect of the Council’s claims to rectification, damages and rent overpaid in respect of the period between May 1991 and April 1994; and

(b) the Council pay the Trust’s costs in respect of the issues referred to in paragraph (a)(ii) in addition to the costs referred to in paragraph (a)(i), which the Council has been ordered to pay by the trial judge.

8   Another course would be to leave the costs referred to in paragraph (a)(i) of the preceding paragraph to be paid by the Council as ordered by the trial judge and to order that the Trust pay the Council a proportion of the costs of the proceedings and a proportion of the costs of the appeal. 9   There are disadvantages in both courses. For example, the former course is likely to involve the parties in substantially more expense when the costs are assessed, while the latter course involves less precision. On balance, we prefer the latter course. 10   While the Council opposed the Trust’s application, it did not suggest different percentages from those which the Trust put forward. We consider that those percentages are realistic, and propose to adopt them. 11   Accordingly, in lieu of the orders pronounced on 22 December 1999 that the orders below be set aside and the Trust pay the costs of the proceedings including the appeal, the following orders are made:

1. The orders made by Hodgson J on 10 October 1997 (other than the order that the Council pay the Trust’s costs of the Amended Notice of Motion filed on 29 August 1997) be set aside.

2. The Trust pay 50% the Council’s costs of the trial (excluding the costs thrown away by vacation of the hearing on 28 May 1997 and the costs of the Amended Notice of Motion filed on 29 August 1997).

3. The Trust pay 75% of the Council’s costs of the appeal.

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