Sanders v Constantine [2006] NSWSC 534

New South Wales Supreme Court

CITATION : Sanders v Constantine [2006] NSWSC 534 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 25/05/06

JUDGMENT DATE : 25 May 2006

JURISDICTION : Equity Division

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 05/25/2006

DECISION : I order that there be no order as to the costs of the proceedings with the intent that each party bear his or her own costs. Otherwise I order that the summons be dismissed.

CATCHWORDS : COSTS – Plaintiff and defendant in dispute over possession of retail premises – Mediation pursuant to Retail Leases Act 1994 (NSW) – Mediation successful in resolving dispute – Plaintiff sought order for costs – Defendant countered with Calderbank letter – Offer open for less than twenty-four hours – Offer not accepted – Defendant sought order for costs on indemnity basis – Incurrence of further costs by both parties contrary to s 56 Civil Procedure Act 2005 (NSW) – Usual principle that Court not to order costs where proceedings not determined on merits and no capitulation – Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia - Ex parte Lai Qin (1987) 186 CLR 621 considered – Whether usual principle applicable – Principle applicable – No order as to costs made.

LEGISLATION CITED : Retail Leases Act 1994 (NSW) Civil Procedure Act 2005 (NSW)

CASES CITED : Calderbank v Calderbank [1976] Fam 93 Re The Minister For Immigration And Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1987) 186 CLR 621

Basil Sanders PARTIES : v Mary Constantine