Goldana Investments Pty Ltd v Amberdown Pty Ltd (No. 2) [2000] NSWCA 92

Reported Decision : [2001] ANZ ConvR 374

New South Wales Court of Appeal

CITATION : Goldana Investments Pty Ltd v Amberdown Pty Ltd (No. 2) [2000] NSWCA 92 FILE NUMBER(S) : CA 40676/99 HEARING DATE(S) : Decided on written submissions JUDGMENT DATE : 14 April 2000

Goldana Investments Pty Ltd (Appellant) PARTIES : Amberdown Pty Limited (First Respondent) Trung Hung Luong (Second Respondent) JUDGMENT OF : Priestley JA at 1; Beazley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT 2640/99 FILE NUMBER(S) : LOWER COURT Bergin J JUDICIAL OFFICER :

COUNSEL : J.C. Kelly S.C. / V. Kerr (Appellant) G.C. Lindsay S.C. / J.E. Armfield (1st Respondent) Phillip Anthony Biber (Appellant) SOLICITORS : C.P. White & Sons (Burwood) (1st Respondent) Davidson James & Associates (2nd Respondent) CATCHWORDS : Costs - (ND) DECISION : Respondent to pay appellant's costs of appeal. No order for costs of the trial.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40676/99 ED 2640/99 PRIESTLEY JA BEAZLEY JA FITZGERALD JA

FRIDAY 14 APRIL, 2000

GOLDANA INVESTMENTS PTY LTD v AMBERDOWN PTY LTD (No. 2)

JUDGMENT COSTS

1 PRIESTLEY JA: I agree with Fitzgerald JA. 2 BEAZLEY JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: Judgment in this appeal was delivered on 16 March 2000, when provision was made for further submissions in relation to the costs of the trial. 4 The appeal arose out of a proceeding in the Equity Division in which the respondent sued the appellant, which cross-claimed. Each of the claim and cross-claim related to a different clause in a lease between the parties. The respondent - lessee alleged that the appellant - lessor was in breach of clause 22 of the lease, and the appellant alleged that the respondent was in breach of clause 6 of the lease. 5 The Equity Division effectively held that the respondent was not in breach of clause 6 of the lease but that the appellant was in breach of clause 22. This clause allowed the appeal in part, and held that the appellant was not in breach of clause 22. However, the appellant's rejection that the respondent is in breach of clause 6 was rejected. 6 There is nothing in the circumstances which disentitles the appellant to the ordinary order that it should have its costs of its partially successful, and necessary, appeal. 7 However, the effect of this Court's orders, broadly speaking, was that both claim and counter claim failed. I do not accept the appellant's submission that the part of the dispute on which it succeeded was more important than the part on which it failed. The dispute in relation to each clause was as important as the dispute in relation to the other. 8 In the circumstances, I would make no order for the costs of the trial.