West End Motor Group Pty Ltd v Fisher [2000] NSWSC 319

New South Wales Supreme Court

CITATION : West End Motor Group Pty Ltd v Fisher [2000] NSWSC 319 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2673/97 HEARING DATE(S) : 12 April 2000 JUDGMENT DATE : 12 April 2000

West End Motor Group Pty Ltd (formerly W A Fisher Enterprises Pty Ltd) (P & XD) William Austral Fisher (D1 & XC) PARTIES : W A Fisher Pty Ltd (D2) Terry J Dodd (2XD) Alan John Potter (3XD) JUDGMENT OF : Hamilton J

COUNSEL : Miss J Merkel (P & XD) I Dallen, Solicitor (D1 & 2 & XC) SOLICITORS : Schrader & Associates (P & XD) Corrs Chambers Westgarth (D1 & 2 & XC) CATCHWORDS : CONVEYANCING [202] - Torrens system - Instruments generally - Other cases - Court order for rectification of registered leases - Appropriate form of order - Instruments varying leases - Who should bear cost. CASES CITED : West End Motor Group Pty Ltd v Fisher [1999] NSWSC 1071, [2000] NSWSC 255 DECISION : Opposing parties ordered to bear equally costs (including stamp duty) of registration of instruments of variation of leases necessary to effect rectification.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 12 APRIL 2000

2673/97 WEST END MOTOR GROUP PTY LTD (FORMERLY W A FISHER ENTERPRISES PTY LTD) v WILLIAM AUSTRAL FISHER & ANOR

JUDGMENT

HIS HONOUR: 1 In this case I have adjudged that registered leases ought be rectified: West End Motor Group Pty Ltd v Fisher [1999] NSWSC 1071 and made some rulings as to the appropriate form of orders [2000] NSWSC 255. On 8 March 2000, I indicated continuing dissatisfaction with the form of the short minutes brought in in relation to the mechanical steps that need to be taken to perfect my judgment. Further debate has taken place between the parties as to the question of who ought pay the costs and expenses arising from the necessity for the variation instruments. Each party, perhaps not surprisingly, has contended that the other ought pay. I have indicated that I propose to order that each side bear one half of those costs. My reasons for that are as follows. 2 The leases by Clause 5.01 provide, as is conventional, for the lessee to pay stamp duty, legal costs and incidental costs and expenses of the leases, but do not make any provision as to the payment of such items in relation to a variation of lease. No doubt this is for the reason that variations were not in the contemplation of the parties when the leases were executed. So far as the costs of the proceedings are concerned, in view of the plaintiff's victory, I have had no doubt that all those costs should be borne by the defendants. However, in my view, the situation is somewhat different in relation to the expenses of the variations of lease. It is true that on my conclusions the defendants created the situation which arose by proffering leases for execution which were not in accordance with what I have found to be the agreement between the parties. However, in my view, the plaintiff must also be regarded as bearing some of the fault for this situation because it executed those leases without carrying out a full examination or otherwise coming to the realisation that the leases were not in accordance with the agreement. There is no doubt in my mind on the evidence in the case that the settlement was conducted in an air of rush, but both parties must bear some responsibility for the mistake. It seems to me that, if, when the mistake became obvious, both parties had acknowledged the mistake and set about remedying it, the reasonable situation between them would have been that each should bear half the additional costs and expenses created by the mistake in which they both participated. 3 In those circumstances, in my view, it is appropriate to order, and I have so provided in the draft minutes of order, that the plaintiff, on the one hand, and the defendants, on the other, should bear one half of those costs and expenses. …oOo…