Braystock Pty Ltd v Garland [2004] NSWSC 907

New South Wales Supreme Court

CITATION : Braystock Pty Ltd v Garland [2004] NSWSC 907 HEARING DATE(S) : 29 September 2004 JUDGMENT DATE : 30 September 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Platinfiffs should pay 60 per cent of defendant's costs.

CATCHWORDS : PROCEDURE [553] - Costs - General rule - Costs follow the event - Costs of whole action - Generally - Plaintiff generally successful - Defendant wins on some issues - Whether issues discrete. Braystock Pty Limited (1P) PARTIES : Julie Elizabeth Foster (2P) Robert Peter Garland (D) FILE NUMBER(S) : SC 4860/02 COUNSEL : G A Rich (Ps) D L Warren (D) SOLICITORS : Barraclough Jones & Associates (Ps) Walker Smith (D)

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 30 SEPTEMBER 2004

4860/02 BRAYSTOCK PTY LTD & ANOR v ROBERT PETER GARLAND JUDGMENT 1 HIS HONOUR: Yesterday I made orders in this matter. Those orders followed upon a trial conducted before me. There was argument as to the costs order that ought be made and the order I made was that the plaintiffs pay 60 per cent of the defendant's costs of the proceedings. These are the reasons for that order. 2 Each party sought an order that the other pay the costs of the proceedings. The plaintiffs obtained a small award in the proceedings in that they were awarded a small amount of damages for a breach of the defendant's covenant in the lease to leave the premises in good repair. Furthermore, at the trial, further claims by the plaintiffs were settled relating to other repairs that had to be carried out after the defendant left the premises. That settlement was reached without prejudice, but it was made known to the Court that, under that settlement, a larger sum of some $9 or 10,000 was payable by the defendant to the plaintiffs. The plaintiffs claimed that on this basis they had had success in the proceedings; that the issues in the proceedings were intermingled; and that the rule should be followed that in those circumstances the plaintiffs should have the costs of the proceedings generally. 3 The defendant argued that, on the major issue that had been argued, namely, who had the entitlement to certain machinery which the defendant had removed from the premises at the end of the lease, the defendant had succeeded and that that should entitle the defendant to the costs of the proceedings generally. 4 In my view, the issues in the proceedings as to the entitlement to the machinery on the one hand and the state of the premises on the other were discrete. Insofar as the proceedings for damage to the premises went to trial, the plaintiff succeeded. In my view, giving the best estimate I can, the damages issues accounted for about 20 per cent of the costs of preparation for and at the trial. 5 Bearing in mind that the plaintiffs should succeed in recovering their costs as to that 20 per cent of the subject matter and that they should not pay the defendant's costs of that 20 per cent, in my view the appropriate order was the order that I made, namely, that the plaintiffs should pay the defendant 60 per cent of the defendant's costs of the proceedings.