Tannous v Cipolla (No 2) [2001] NSWSC 296

New South Wales Supreme Court

CITATION : Tannous v Cipolla (No 2) [2001] NSWSC 296 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1398/01 HEARING DATE(S) : 18/04/01 JUDGMENT DATE : 20 April 2001

PARTIES : Bernard Tannous - Plaintiff Cipolla Bros Holdings Pty Limited - Defendant JUDGMENT OF : Barrett J

COUNSEL : Mr C. Tannous (Solicitor) - Plaintiff Mr N. Potts - Defendant SOLICITORS : Jones King Lawyers - Plaintiff Star Carver & Co - Defendant CATCHWORDS : Costs CASES CITED : Cicinave Pty Ltd v Jasco Pty Ltd (1989) 5 BPR 11,139 DECISION : Plaintiff to pay defendant's costs

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

FRIDAY, 20 APRIL 2001

1398/2001 - TANNOUS v CIPOLLA BROS HOLDINGS PTY LIMITED (NO 2)

JUDGMENT

HIS HONOUR: 1 Upon this matter being listed for mention on 18 April 2001, Mr C. Tannous, the solicitor for the plaintiff, and Mr N. Potts of Counsel for the defendant made submissions in relation to the orders I should make (including orders as to costs) in consequence of judgment given on 6 April 2001. 2 As to costs, I indicated in that judgment that, because of the conclusions as to termination of the lease of shop 2 and relief against forfeiture, the plaintiff should pay all costs of the proceedings relevant to those issues. I also expressed a preliminary view that, as there had been findings adverse to the plaintiff regarding refusal of consent to assignment of the lease of shop 2, that the plaintiff should also pay the balance of the defendant's costs. 3 Mr C. Tannous, for the plaintiff, submitted that, in the exercise of the Court's discretion, costs related to the issues of termination of the lease of the shop and relief against forfeiture should not be awarded against his client. But such an approach would be at entirely odds with the principles concerning relief against forfeiture in matters of this kind which were referred to in my earlier judgment. In particular, I said at paragraph 24, after referring to the fact that rent had been paid in full: "It follows that if the plaintiff also pays the costs and expenses to which the defendant has been put by the present proceedings insofar as they concern termination of the lease and relief against forfeiture, the plaintiff is entitled to succeed upon his application for relief against forfeiture, assuming the absence of any other factor which would cause a court of equity to exercise its discretion against the grant of such relief."