New South Wales Supreme Court CITATION : Golding v Vella (No 2) [2001] NSWSC 731 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3043/99 HEARING DATE(S) : 09/08/01 JUDGMENT DATE : 29 August 2001 Mark John Golding - Plaintiff PARTIES : Frederick Anthony Vella - First Defendant Therese Marianne Vella - Second Defendant JUDGMENT OF : Barrett J COUNSEL : Mr G.P. McNally - Plaintiff Mr G.A. Seib - Defendants SOLICITORS : Matthews Dooley & Gibson - Plaintiff Williams Boxsell Georgas CATCHWORDS : PROCEDURE - costs - departure from rule that costs follow event - each party enjoying substantial success - each to bear own costs LEGISLATION CITED : Supreme Court Act and Rules Lavender View v North Sydney Council (No 2) [1999] NSWSC 775 Hally v Dennis (1955) 95 CLR 661 CASES CITED : Welsh Estates Ltd v Phillip (1931) 144 LT 643 Disck v Yates (1881) 18 ChD 76 NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 DECISION : Each party bear its own costs 4 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BARRETT J WEDNESDAY, 29 AUGUST 2001 3043/1999 - GOLDING v VELLA & ANOR (NO 2) JUDGMENT HIS HONOUR: 1 These reasons deal with the costs of the proceedings. 2 The plaintiff was the vendor and the defendants were the purchasers under a contract for the sale of land which was terminated by the plaintiff. He claimed a declaration that he had validly terminated the contract, an order for the payment of the unpaid balance of the deposit and damages. I made the declaration the plaintiff sought. In relation to the deposit, I held that the defendants were entitled to relief from forfeiture under s.55(2A) of the Conveyancing Act 1919, so that they did not have to pay the unpaid balance and were entitled to recover the part they had paid. The defendants, though, were ordered to pay to the plaintiff damages with interest for breach of contract. 3 In money terms the outcome of the proceedings was that the plaintiff failed in his attempt to recover $52,162.50 as the balance of the deposit and was ordered to return to the defendants $1,337.50 being the part of the deposit paid by the defendants, but did obtain judgment for $8,199.40 including interest for breach of contract. 4 Mr McNally, counsel for the plaintiff, submitted that the plaintiff was on the whole successful and therefore under the general rule that costs follow the event entitled to costs. 5 Mr Seib, counsel for the defendants, submitted that the defendants succeeded in the principal claim against them, which was the plaintiff's claim for the recovery of the balance of the deposit and that, while it was in the Court's discretion to award costs to the defendants, the most appropriate outcome would be an order that each party pay its own costs. 6 Section 76 of the Supreme Court Act 1970 provides the Court with a wide discretion in relation to costs. Part 52A rule 4(1) of the Supreme Court Rules 1970 provides that the powers and discretions of the Court under s.76 of the Supreme Court Act "shall be exercised subject to and in accordance with this Part". 7 The general rule is "that the costs follow the event, except where it appears to the court that some other order should be made as to the whole or any part of the costs": Pt 52A r 11 The position in this case is that "the plaintiff has recovered judgment in contested proceedings": Lavender View v North Sydney Council (No 2) [1999] NSWSC 775 per Rolfe J. The Court should not make a successful defendant pay the costs of an unsuccessful plaintiff: see Hally v Dennis (1955) 95 CLR 661 at 663-664 cf Welsh Estates Ltd v Phillip (1931) 144 LT 643 at 644 per Macnaghten J; Disck v Yates (1881) 18 Ch D 76. Justice Giles noted in NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 that: "If a party fails on some issues, the circumstances may make it reasonable that he be deprived of the costs of those issues, or even be ordered to pay the other party's costs of those issues. For this purpose, issues may be issues in a pleading sense of bases of claim, or may be disputed questions of fact or law. But it must be remembered that parties should not be dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case, and unless a particular issue or group of issues is clearly dominant or separable from the balance of the proceedings it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between the issues on which he was successful and those on which he failed." 8 In these proceedings, as I observed in the judgment of 9 July 2001, each side has enjoyed some measure of success. It is not necessary, and perhaps unwise, to be too technical about measuring success on the various issues pleaded: "one does not look at issues as if they were pleader's issues, but approaches the matter with a broad brush": Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22 per Young J. 9 If a broad approach is taken to the nature of the outcome of these proceedings it is clear that neither party was significantly more successful than the other. The plaintiff succeeded in 2 out of the 3 relevant issues. However, the defendants succeeded (by way of showing grounds for relief against forfeiture) on what was the largest financial component. Therefore the appropriate order in these proceedings is that each party bear its own costs. I so order. ********** Last Modified: 08/30/2001 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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