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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: South Sydney Council v Royal Botanic Gardens and Domain Trust (No 2) [2000] NSWCA 242
Case: [2000] NSWCA 242
Decision Date: 31 August 2000

CaseChat Overview and Summary

South Sydney Council and the Royal Botanic Gardens and Domain Trust were parties to proceedings before the Court of Appeal of New South Wales. The dispute concerned the costs of earlier proceedings, including a trial and an appeal, which had been determined by Hodgson J. The Court of Appeal was asked to review and vary the orders made by the trial judge concerning the allocation of costs.

The primary legal issue before the Court of Appeal was the appropriate distribution of costs between the Council and the Trust, given the outcome of the substantive proceedings and the appeal. This involved considering whether the trial judge's cost orders accurately reflected the relative success of the parties and the overall conduct of the litigation.

The Court of Appeal varied the costs orders previously made. It set aside the majority of Hodgson J's cost orders, with the exception of an order concerning the costs of a specific notice of motion. The Court then ordered that the Trust pay 50% of the Council's costs of the trial, excluding certain specific costs related to a vacated hearing date and the aforementioned notice of motion. Furthermore, the Trust was ordered to pay 75% of the Council's costs of the appeal.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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