New South Wales Supreme Court CITATION : Ell v Cisera [2000] NSWSC 961 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2016/00 HEARING DATE(S) : 5 October 2000 JUDGMENT DATE : 5 October 2000 PARTIES : Richard Ell t/as GNP Printing (P) Dino Cisera (D) JUDGMENT OF : Hamilton J COUNSEL : H Thurairajah, Sol (P) D L Oliveri, Sol (D) SOLICITORS : Thurai Rajah Lawyers (P) Oliveri Solicitors (D) CATCHWORDS : PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct. LEGISLATION CITED : Supreme Court Rules 1970 Pt 52A r 11 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2000] NSWSC 313 Ell v Cisera [2000] NSWSC 768 CASES CITED : Hughes v Western Australian Cricket Association (1986) ATPR 40-748 JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432 Ronnoc Finance Ltd v Spectrum Network Systems Ltd 19 November 1997 NSWSC unreported Waters v P C Henderson (Australia) Pty Ltd 6 July 1994 NSWCA unreported DECISION : General rule should not be departed from. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J THURSDAY, 5 OCTOBER 2000 2016/00 RICHARD ELL t/as GNP PRINTING v DINO CISERA JUDGMENT HIS HONOUR: 1 The question of the costs of these proceedings has been argued before me this morning. Each of the parties applies for an order for costs of the proceedings against the other on the indemnity basis. The contested questions which I determined in the proceedings were set out in [19] of the substantive judgment which I delivered on 3 August 2000: Ell v Cisera [2000] NSWSC 768 ("my judgment"). There were really three issues in the proceedings. The first was encompassed in Question (1); the second in Questions (2) and (3); and the third in Question (4). On the issue encompassed in Questions (2) and (3), in essence, whether the remedial steps taken by the plaintiff in respect of the factory floor were "reasonable steps to reinstate the premises", the plaintiff succeeded and the defendant failed. The plaintiff was allowed, under the orders that I subsequently made, to resume occupation of the premises to carry on the reinstatement process. As to the first issue raised, by Question (1), namely, whether the defendant terminated the lease by re-entry on 7 March 2000, the plaintiff succeeded in the sense that I held that question not now to arise, it having been determined in a practical way by the agreement between the parties embodied in the orders made by Santow J on 6 April 2000. In this sense, the plaintiff won on that issue, because the decision meant that the defendant was not entitled to rely in his favour upon a valid termination of the lease on 7 March 2000. The third issue, encompassed in Question (4), was whether the plaintiff was entitled to the indulgence of relief from the consequences of his breaches of the lease in relation to the exercise of the option contained in the commercial lease. On this issue the plaintiff lost, so that the situation became that the lease expired by effluxion of time and at this time continues as a tenancy from month to month, pursuant to the terms of the commercial lease. 2 An additional matter which the defendant seeks to have taken into account on the question of costs is as follows. The plaintiff was let into occupation, under my orders, on 14 August 2000 to complete the reinstatement work. The evidence at the trial was that there were only two or three days needed to complete the reinstatement work at the time the plaintiff was excluded from the premises, in May 2000. Today, some 55 days after the resumption of occupation, it is agreed that no notice has been given to the defendant by the plaintiff of the completion of the work. It was stated in Court only today that the work was completed yesterday; and this, after the plaintiff's solicitor's instructions, given in open court, had been changed on two occasions as to whether and when the work had been completed. The defendant submits that this state of affairs is further evidence of an attitude on the plaintiff's part as to the litigation and the commercial lease that ought be taken into account in the defendant's favour on the determination of costs in these proceedings. In making these remarks, I should say that this matter was raised in Court only this morning and that Miss Thurairajah, for the plaintiff, has not had any opportunity to bring forward any material she might desire to have taken into account on an assessment of the plaintiff's conduct since 4 August 2000. That she has not had that opportunity does not matter for reasons which will subsequently appear. 3 The principles relating to costs of proceedings are that, in general terms, a plaintiff who is successful, albeit only partly successful, in proceedings ought have the costs of the proceedings. That is, the costs ought follow the event, unless there are other factors or circumstances which justify the making of a different order. One circumstance which is commonly relied on in support of a different order is that there were discrete issues in the proceedings and different results upon those discrete issues, by reason of which justice requires that the generally unsuccessful party should have taken into account in its favour the successes which it has achieved on some issues. Thus, if the issue on which a plaintiff wins has taken only one day of court time and another matter has been agitated for 50 days, upon which the defendant has been completely successful, then it would be unjust simply to order the plaintiff to pay the costs of the proceedings: see generally Supreme Court Rules 1970 Part 52A r 11; Hughes v Western Australian Cricket Association (1986) ATPR 40-748; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261; Waters v P C Henderson (Australia) Pty Ltd 6 July 1994 NSWCA unreported; Ronnoc Finance Ltd v Spectrum Network Systems Ltd 19 November 1997 NSWSC Santow J unreported; and my own decisions in Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2000] NSWSC 313 and JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432. 4 The difficulty which the defendant faces in this regard in these proceedings is that, in my view, the plaintiff must be regarded as having succeeded on two out of the three issues. An argument was put by Mr Oliveri for the defendant that, in reality, all that mattered to the parties was whether or not the option had been validly exercised and, the plaintiff having lost on that issue, the defendant should be regarded as the successful party. To that argument I do not accede. The defendant avowedly chose to maintain the other two issues on which it failed and there is nothing that takes these proceedings out of the class of ordinary adversary proceedings in which costs will usually follow the event. 5 Furthermore, the issue on which the defendant succeeded I do not regard as a discrete issue, in the sense in which that term is understood in this area of the law. In fact, the same subject matter was necessarily traversed in relation to the issues on which the defendant failed, particularly in relation to the facts and circumstances relating to the payment of rent, as in relation to the first issue, because the defendant maintained that, although the rent was up-to-date at the time of the March forfeiture, repeated unpunctuality in the payment of the rent ought be regarded as justifying termination under clause 29(b)(ii) of the commercial lease. There were not, in fact, separate bodies of evidence and of argument which could be regarded as related, in the one case, to an issue on which the plaintiff was successful and, in the other case, to an issue on which the defendant was successful. In those circumstances, subject to one other argument put to me by Mr Oliveri, the plaintiff should have his costs on the basis of the ordinary policy that the generally successful party should have the general costs in the proceedings. 6 The other basis on which Mr Oliveri contended that the ordinary course should be departed from was that the conduct of the plaintiff had been such that it "provoked" the conduct of the defendant, including his conduct in re-entering the premises in May 2000, which I have found he was not entitled to do. Furthermore, Mr Oliveri seeks to rely to bolster his argument on recent conduct of the plaintiff particularly his long drawn out process of reinstatement and equivocal statements as to completion. 7 Whilst I shall say that, prima facie, it appears extraordinary that it has taken 55 days to have this comparatively small amount of work done and that progress has not, in the meantime, been in any way reported to the defendant, as I have already indicated, that issue has not been fully agitated. However, it has been unnecessary to do this because I have taken the view that the recent conduct, even if it be unsatisfactory, is not in any event appropriate to be taken into account in determining the incidence of the costs of the proceedings up to the date at which judgment was delivered and orders made. Without adverting to recent events, however, I have made observations in my judgment as to the unsatisfactoriness of the conduct of the plaintiff in certain regards and have characterised that conduct as evincing an attitude held by the plaintiff which has meant that he ought not be forced upon an unwilling landlord as tenant for a renewed term. This conduct related both to the obligation to pay rent and to the damage inflicted on the floor of the premises: see my judgment [26]. However, none of this, in reality, went to the merits of the contest concerning the validity of the May termination or the validity or relevance of the March termination of the commercial lease which the defendant purported to effect and I am not prepared to depart from the usual course as to costs on the basis of any conduct of the plaintiff. 8 The situation therefore is that, bearing in mind that I am not of the view that there was an issue discrete in the relevant sense on which the defendant succeeded and bearing also in mind that in my view the evidence and argument that related solely to the exercise of discretion as to the indulgence sought were not of great extent, the order that I propose to make in relation to the costs of the proceedings is an order that the defendant pay the plaintiff's costs of the proceedings. 9 One other matter that I should advert to is that, at the time of the making of the orders of 6 April 2000, Santow J ordered that the plaintiff pay the defendant $1,500 by way of costs of steps taken to that point and that, in fact, that $1,500 was paid. That order, having been made and carried out, cannot now be revoked, but Miss Thurairajah has asked that that sum ought be ordered to be repaid in light of subsequent events, including the plaintiff's general success in the proceedings and his obtaining a general order for costs in his favour. She says that this ought be done because the defendant had disregarded the Court's orders of 6 April 2000. I do not accede to this submission. Part of the consideration which the plaintiff, in effect, gave for the agreement embodied in those orders was the payment of the $1,500. Whilst it was found that the defendant had, in fact, not acted in accordance with Santow J's orders in re-entering the premises in May 2000, I do not regard his conduct as contumelious in this regard. He believed, however erroneously, that the steps being taken at the time were not reasonable within the terms of the orders. Nothing should be done to affect those orders or the payment made under them, and the general order in the plaintiff's favour should not extend to the costs of the portion of the proceedings to which that order of Santow J related. 10 So far as the question of indemnity costs is concerned, as there are no costs to be ordered in the defendant's favour, there can be no question of them being upon the indemnity basis. So far as the costs order in favour of the plaintiff is concerned, in my view there is no factor which takes the matter out of the ordinary course so as to require those costs to be ordered on the indemnity, rather than the ordinary, basis. In particular, the determination of what I have described in this judgment as the first and second issues was far from easy and it was not, in my view, at any stage self evident that the issues would be determined in the way they were or that it was irresponsible for the arguments put on behalf of the defendant to be maintained, albeit they were ultimately unsuccessful. 11 I order that the defendant pay the plaintiff's costs of the proceedings, other than the costs of the application referred to in order 7 of the orders made by Santow J on 6 April 2000. I grant liberty to apply before me in relation to the costs order on three days notice. …oOo… Last Modified: 11/10/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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