New South Wales Court of Appeal CITATION: Boreland v Docker & Ors (No 2) [2007] NSWCA 275 HEARING DATE(S): On the papers JUDGMENT DATE: 10 October 2007 JUDGMENT OF: Mason P at 1; Beazley JA at 1; Ipp JA at 1 DECISION: 1. Correct the Orders made by the Court on 24 April 2007 pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), so as to add as Order 2A: "The respondents' cross-claim be otherwise dismissed"; 2. Order that the respondents pay 80 per cent of the appellant's costs at first instance; 3. Order that the appellant and the respondents pay his and their own costs of the appeal. CATCHWORDS: COSTS – provision in lease that lessee to pay lessor's costs where no judgment recorded against lessor – whether the effect of the orders of the court was that a judgment was recorded against the lessor - COSTS – appropriate order for costs on appeal and at trial where appellant partially successful on appeal – successful points on appeal subject of significant evidence and submissions at trial Civil Procedure Act 2005 (NSW) ss 3, 133 LEGISLATION CITED: Suitors' Fund Act 1951 (NSW) s 6C Supreme Court Act 1970 (NSW) ss 63, 66, 67, 69A, 73, 75 Uniform Civil Procedure Rules 2005 (NSW) rr 36.1, 36.2, 36.4, 36.11, 36.17 John Leslie Boreland (Appellant) PARTIES: Shane Docker (First Respondent) Daniel Thomas Docker (Second Respondent) Liquor Administration Board (Third Respondent) FILE NUMBER(S): CA 40060/07 JM Ireland QC; GA Moore; A Hatzis (Appellant) COUNSEL: DM Murr SC; JB Conomy (First & Second Respondent) Submitting appearance (Third Respondent) Mavrakis & Associates (Appellant) SOLICITORS: JDK Legal (First & Second Respondent) IV Knight Crown Solicitor (Third Respondent) LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 6461/2005 LOWER COURT JUDICIAL OFFICER: White J LOWER COURT DATE OF DECISION: 9 February 2007 LOWER COURT MEDIUM NEUTRAL CITATION: John Leslie Boreland v Shane Docker & 1 Or [2007] NSWSC 53 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40060/07 MASON P BEAZLEY JA IPP JA 10 October 2007 John Leslie Boreland v Shane Docker & Ors (No 2) Judgment 1 THE COURT: The appellant was the lessee of certain hotel premises pursuant to a written lease entered into on 1 August 2003. The lease was a weekly tenancy. The appellant contended that there had been a variation of the term of the lease so as to provide for a fixed term expiring on 31 August 2007. The trial judge held there had been no variation. This Court determined, however, that the lease had been varied and made a declaration to that effect. 2 There were a number of poker machine entitlements allocated to the Hotelier's Licence. This Court determined, for reasons that differed from the reasons of the trial judge, that the appellant was obliged upon the determination of the lease to transfer the poker machine entitlements to the respondents. The Court varied the declaration that had been made by the trial judge relating to the poker machine entitlements to reflect its different determination of that issue. 3 The Court did not determine the question of costs at the time that it delivered its decision, for two reasons. First, neither party had addressed the question of costs other than on the usual basis, that costs follow the event. However, the effect of the Court's determination was that the appellant had partial success only, in circumstances where that may have been relevant to determining whether some other order in relation to costs ought to be made. Secondly, cl 6(iii) of the lease made provision for costs, so that there was a question as to whether, regardless of any order that the Court would make, the respondents had a contractual entitlement to costs. 4 Pursuant to directions of the Court, the parties have provided written submissions addressing these matters. 5 It is convenient to consider first whether the appellant is required to pay the respondents' costs pursuant to cl 6(iii) of the lease. 6 Clause 6 provides relevantly; "The Lessee will pay the Lessor's costs (including legal costs as between solicitor and client) in relation to: … (iii) any litigation involving the lessor commenced by or against the Lessee in which no judgment is recorded against the Lessor." 7 The respondents contend that the conditions of cl 6(iii) are satisfied as no judgment was recorded against the respondents to the litigation, so that they are thereby entitled to costs as provided by that clause. 8 "Judgment" is not defined in the lease. 9 The Civil Procedure Act 2005 (NSW) (the Civil Procedure Act) defines "judgment" to include "any order for the payment of money, including any order for the payment of costs": s 3. Section 133(1) provides that a judgment or order of the court may not be enforced until it has been entered in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). 10 Rule 36 of the UCPR governs judgment and orders. Rule 36.1 provides that at any stage of proceedings, "the court may give such judgment, or make such order, as the nature of the case requires …". Rule 36.1A makes provision for the giving of judgment in the terms of an agreement between the parties in relation to the proceedings between them. Pursuant to r 36.2, the court must give written reasons for its judgment or order. A judgment or order takes effect as at the date on which it is given or, in certain circumstances, as at the date on which it is entered: r 36.4. 11 Rule 36.11 provides for the entry of judgment and orders. It requires that any judgment or order of the court is to be entered: r 36.11(1). Pursuant to r 36.11(2)(a), in the case of a court that uses a computerised record system, a judgment or order of the court is taken to be entered when it is recorded on that system. The Supreme Court of New South Wales, including the Court of Appeal, uses a computerised record keeping system. The Orders made by White J and by this Court have been entered into that system. 12 Section 63 of the Supreme Court Act 1970 (NSW) (the Supreme Court Act) provides that the court shall grant all such remedies to which a party may be entitled in respect of any legal or equitable claim, so that all matters in controversy between the parties may be completely and finally determined. Part 5 of the Supreme Court Act, which is entitled "Powers", makes provision, in a series of sections, for the various types of relief that the court may grant including, for example, injunction: s 66; the appointment of a receiver: s 67; orders in judicial review proceedings in relation to a conviction or sentence for an offence: s 69A; orders for relief against forfeiture: s 73; and, relevantly, orders by way of declaratory relief: s 75. 13 In the present case, the matter proceeded by way of Statement of Claim, in which the appellant sought (in his Amended Statement of Claim) declaratory relief in respect of the following six matters: (1) that the term of the lease had been varied so as to provide for a fixed term ending on 31 August 2007; (2) that the appellant continued to hold the Hotelier's Licence for the Arncliffe Hotel; (3) that the appellant was entitled to make an application to the Liquor Administration Board for the transfer of the poker machine entitlements presently allocated to the Hotelier's Licence; (4) that the appellant was under no obligation to transfer the poker machine entitlements back to the respondents at the end of the term of the lease; (5) that the Notice to Quit, dated 25 November 2005 and served by the respondents on the appellant, was of no effect; and (6), that the Notice to Quit dated 21 February was of no effect. 14 The respondents brought a cross-claim in which they sought: judgment for possession on the basis that the weekly tenancy had been terminated; leave to issue a writ of possession; mesne profits; declarations relating to the poker machine entitlements, including a declaration that the poker machine entitlements were held on trust for them; an injunction restraining the appellant from doing anything to transfer the poker machine entitlements to any other person without the approval of the respondents; and other incidental orders. 15 The trial judge determined that there had been no variation of the lease and declared that the appellant had been obliged since 25 March 2006 to do all things necessary to transfer the Hotelier's Licence relating to the Arncliffe Hotel and the poker machine entitlements to the respondents. His Honour dismissed the claims for relief sought by the appellant and made orders for possession of the land and granted leave to issue a writ of possession. He also made a declaration and restraining order relating to the poker machine entitlements. The declaration and restraining order made in favour of the respondents were orders made on the cross-claim. 16 On the appeal, this Court held that there had been a variation of the lease and ordered that the appeal be allowed in part. Order 1 made by his Honour, in which the appellant's claim for relief was dismissed, was set aside and this Court made a declaration that the lease had been varied so as to provide for a fixed term ending on 31 August 2007. The effect of setting aside Order 1, and declaring that the lease was varied, involved a rejection of that part of the cross-claim in which the respondents sought possession of and associated relief in respect of the leased property. That necessitated setting aside Orders 2, 3 and 4 made by his Honour, whereby he gave judgment for possession, granted leave to issue a writ of possession and declared the respondents' entitlement to mesne profits. 17 This Court set aside Order 6, which was the restraining order made by his Honour in respect of the appellant's right to transfer the poker machine entitlements and also set aside Orders 7-11 relating to costs, the assessment of mesne profits and other incidental orders: see Order 2 made by this Court. For reasons given below, it will be necessary to return to Order 8 made by his Honour. 18 Finally, this Court varied the declaration made by his Honour (Order 5 of this Court), so as to provide that the appellant was obliged, upon the determination of the lease, to transfer the poker machine entitlements to the respondents. 19 Clause 6(iii) provides that the lessors were entitled to costs if no judgment was recorded against them. It is necessary to determine, therefore, whether the effect of this Court's orders was that there was a judgment recorded against them. 20 It is the opinion of the Court that the meaning of "judgment" in cl 6(iii) means the making of a substantive order by a court adverse to the respondents in proceedings between the parties. Such a judgment would include the making of declarations, if that is the manner in which the court finally determines matters in issue between the parties: see s 63, the Supreme Court Act. The phrase "recorded against [the respondents]" means the formal means by which a court records its judgments or orders. In the case of orders made in the Supreme Court, that is by the entering of judgment. 21 The fact that the appeal was allowed in part (and subsequently entered in the Court's records) was itself a judgment recorded against the respondents. However, even if something more than that was required, this Court's declaration that the term of the lease had been varied was a judgment against the respondents. That declaration constituted a substantive order finally determining the rights of the parties in relation to the term of the lease and was an order adverse to the claim proposed by the respondents. There is, therefore, a judgment recorded against the respondents. 22 It is arguable that the declaration of the respective rights of the parties in relation to the poker machine entitlements involved recording a judgment against the respondents as it was made in terms different from the right asserted by the respondents. However, it is not necessary to express a final opinion on that matter. 23 Accordingly, cl 6(iii) does not govern the entitlement of the parties to the costs of these proceedings. 24 It is next necessary to consider the cross-claim brought by the respondents. Having regard to the appellant's success in this Court on his claim that the term of the lease had been varied, the respondents were unsuccessful in their claim that the lease had been terminated by either one or other of its Notices to Quit. However, this Court made a declaration in relation to the poker machine entitlements that was based upon para 6 of the respondents' claim for relief, but with a variation to take account of the Court's different finding as to the term of the lease. In those circumstances, the Court should not only have varied the declaration made by the trial judge, it should have ordered that the cross-claim be otherwise dismissed. That matter was overlooked at the time of giving judgment. That amendment ought now be made under UCPR r 36.17 (the slip rule). We would add that an order dismissing a cross-claim in whole or in part also involves the recording of a judgment, within the meaning of cl 6(iii). 25 The trial judge ordered that the cross-claim be otherwise dismissed (Order 8). This Court has set that Order aside. For the reasons given, an order in those terms needs to be made so as to finally dispose of the proceedings between the parties. In the circumstances, Order 2 made by this Court ought to remain. However, a new order otherwise dismissing the appeal should be made, so as to make it explicit that the effect of this Court's judgment was that the respondents' claims, except for a variation of the declaration it sought in para 6 of its cross-claim, are dismissed. 26 That leaves for consideration the order for costs that this Court should make. The appellant contends that the appropriate orders that should be made are: "(a) that each party pay [their] own costs of the Appeal; (b) that the first and second respondents, as defendants below, pay the appellant's costs of the trial …" 27 The appellant also sought an order be made that the respondents have a certificate under the Suitors' Fund Act 1951 (NSW) (the Suitors' Fund Act) in respect of the costs of trial. We do not propose to make such an order. The circumstances in which a payment may be made out of the Suitors' Fund for the costs of a trial are limited and relevantly, in a case such as the present, dependent upon the Director-General, with the Attorney-General's concurrence, forming an opinion that a payment should be made: see s 6C of the Suitors' Fund Act. That is not a matter for the Court. 28 The respondents contend that the appropriate order is that the appellant pay their costs of the trial and of the appeal on a solicitor and client basis, as the substance of the trial and appeal were determined in their favour. 29 The parties had, in effect, equal success on the appeal in the sense that there were two major issues and the appellant was successful on one and the respondents substantially successful on the other. In those circumstances, we have come to the view that the appellant and respondents should pay his and their own costs of the appeal. This conclusion has been arrived at notwithstanding that the issue relating to the poker machine entitlements, upon which the respondents were substantially successful, underlay the dispute, the question whether the lease had been varied was a significant issue in the proceedings. Although the value in the appellant being able to succeed on that issue may well have been tied to the ultimate question of the rights of the parties as to the poker machine entitlements, we are not prepared to assume that the variation of the term of the lease from a weekly tenancy to a tenancy for a fixed term was not itself of commercial relevance and value to the appellant. Indeed, there is material from which it may be inferred that it was of commercial relevance to the appellant. In particular, the respondents' claim for mesne profits from 25 March 2006 indicates that the question of variation of the lease would have had an economic impact on the appellant. 30 That leaves the question of costs at first instance. The effect of the appellant's partial success in this Court was that the appellant was entitled to the relief that it sought both in respect of the term of the lease and the poker machine entitlements. However, it was not successful in respect of its claim relating to the poker machine entitlements. 31 What, then, is the appropriate order for costs? The appellant submits that, as is apparent from the trial judge's reasons, a substantial portion of time at first instance was devoted to the question of the variation of the lease. This is correct. The question of the rights of the parties as to the poker machine entitlements involved a question of construction of two provisions of the lease, whereas the question of the variation of the lease involved a considerable body of evidence from witnesses. 32 We consider, therefore, notwithstanding the importance of the poker machine entitlements insofar as the issues between the parties were concerned, substantial weight should be given to the likely time taken for each issue to be ventilated before the trial judge, both by way of evidence and submissions. The Court has no accurate gauge for this, but it is appropriate to make an approximation as fairly as it can. We have concluded that the appropriate order for costs is that the respondents pay 80 per cent of the appellant's costs at first instance. 33 The Court makes the following Orders: 1. Correct the Orders made by the Court on 24 April 2007 pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), so as to add as Order 2A: " The respondents' cross-claim be otherwise dismissed "; 2. Order that the respondents pay 80 per cent of the appellant's costs at first instance; 3. Order that the appellant and the respondents pay his and their own costs of the appeal. ********** 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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