Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd (No. 4)

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.