Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd (No. 4) - [2020] ACTSC 131

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd (No. 4)
Citation:	[2020] ACTSC 131
Hearing Date:	6 April 2020
Decision Date:	18 May 2020
Reasons Date:	28 May 2020
Before:	Penfold J
Decision:	The Court: (a) declares that 10% of the total costs of the matter are attributable to the cleaning claim; and (b) orders that the plaintiff pay 90% of the defendant’s costs as agreed or assessed.
Catchwords:	PRACTICE AND PROCEDURE — Costs — where plaintiff unsuccessful in major claim but successful in one of four minor claims — where plaintiff awarded nominal damages of $20 — where plaintiff sought costs order in its favour — whether plaintiff “substantially successful” — whether defendant “bound to fail” in minor claim — whether defendant could have avoided proceedings — whether defendant took unreasonable approach to particulars — plaintiff’s contribution to “unnecessary complexity” — significance of level of nominal damages awarded — whether plaintiff had other “realistic lawful options” in relation to successful claim. PRACTICE AND PROCEDURE — Costs — where plaintiff unsuccessful in major claim but successful in one of four minor claims — where plaintiff awarded nominal damages of $20 — where plaintiff sought costs order in its favour — Leases (Commercial Tenancies) Act 2001 (ACT) — parties to meet own costs unless court orders otherwise — public policy concerns — risk of discouraging tenants’ claims — Court Procedures Rules 2006 (ACT) — court may attribute specified percentage of costs of proceeding to specified issue or part of proceeding — desirability of avoiding costs order requiring assessment of costs of both parties. PRACTICE AND PROCEDURE — Costs — application by plaintiff for stay of any costs order — intention to appeal not as such a basis for staying costs order — no claim by plaintiff of hardship, impact on business, or delay in hearing of appeal — no basis for staying costs order.
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 1705 Leases (Commercial Tenancies) Act 2001 (ACT) s 154
Cases Cited:	Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Roadshow Films Pty Ltd v iiNet Limited (No.4) [2010] FCA 645; 269 ALR 606 Lewis v Australian Capital Territory [2019] ACTCA 16 Leda v Brenda Hungerford Pty Ltd [2018] ACTCA 17; 13 ACTLR 252 Volanne v International Consulting and Business Management [2015] ACTCA 25 Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd (No 3) [2020] ACTSC 53 Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd [2011] ACTSC 47 Lewincamp v ACP Magazines (No. 3) [2008] ACTSC 81 State of New South Wales v Stevens [2012] NSWCA 415; (2012) 82 NSWLR 106 Jireh International Pty Ltd v Western Export Services Inc (No 2) [2011] NSWCA 294 NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 Australian Conservation Foundation Inc. v Forestry Commission of Tasmania (1988) [19 FCR 127] 81 ALR 166

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

Case: [2020] ACTSC 131
Decision Date: 18 May 2020

CaseChat Overview and Summary

In Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd, the Federal Circuit Court was tasked with deciding an application by Supabarn, the plaintiff, for a costs order in its favour despite being unsuccessful in its major claim against Cotrell, the defendant. The plaintiff sought costs in relation to a minor successful claim, which was one of four claims made in the proceedings. The plaintiff was awarded nominal damages of $20 for its successful minor claim.

The court had to determine whether the plaintiff was "substantially successful" to justify a costs order in its favour, considering that it was unsuccessful in its major claim. The court also assessed whether the defendant was "bound to fail" in the minor claim and whether the defendant could have avoided the proceedings or took an unreasonable approach to particulars. The court considered the plaintiff's contribution to the "unnecessary complexity" of the matter, the significance of the level of nominal damages awarded, and whether the plaintiff had other "realistic lawful options" in relation to the successful claim.

The court found that the plaintiff was not substantially successful as it was unsuccessful in its major claim, and the successful minor claim did not warrant a costs order. The court determined that 10% of the total costs were attributable to the cleaning claim, and ordered that the plaintiff pay 90% of the defendant's costs as agreed or assessed. The court rejected the plaintiff's application for a stay of any costs order, noting that the intention to appeal was not, in itself, a basis for staying the costs order.

The court concluded that there was no basis for staying the costs order as the plaintiff made no claim of hardship, impact on its business, or delay in the hearing of the appeal. The court also considered the public policy concerns of discouraging tenants' claims and the risk of discouraging tenants' claims in future proceedings. The court followed the provisions of the Leases (Commercial Tenancies) Act 2001 (ACT) and the Court Procedures Rules 2006 (ACT) in making its decision. The court also considered the desirability of avoiding a costs order that required the assessment of the costs of both parties.

Orders

Orders of the court

The Court:

(a) declares that 10% of the total costs of the matter are attributable to the cleaning claim; and

(b) orders that the plaintiff pay 90% of the defendant’s costs as agreed or assessed.

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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