New South Wales Supreme Court CITATION : Clarke v Lopwell Pty Ltd [2008] NSWSC 797 HEARING DATE(S) : 20 June 2008 JUDGMENT DATE : 20 June 2008 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Orders made. Defendant to pay the plaintiffs' costs of the proceedings. CATCHWORDS : PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct. CATEGORY : Procedural and other rulings CASES CITED : Barnes v Addy (1874) LR 9 Ch App 244 Clarke v Lopwell Pty Ltd [2008] NSWSC 615 Dallas James Clarke (P1) PARTIES : Juliet Jane Clarke (P2) Milk Makers Dairy Heifers Pty Limited (P3) Lopwell Pty Limited (D) FILE NUMBER(S) : SC 5637/04 COUNSEL : A D Crossland (Ps) R G Forster SC and P J Dowdy (D) SOLICITORS : Patey & Murphy (Ps) Robinson Legal Pty Limited (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J FRIDAY, 20 JUNE 2008 5637/04 DALLAS JAMES CLARKE & ORS v LOPWELL PTY LIMITED JUDGMENT 1 HIS HONOUR: In this matter I delivered judgment on Wednesday, 18 June 2008: Clarke v Lopwell Pty Ltd [2008] NSWSC 615 ("my judgment"). At that time, to aid the making of orders in a speedy fashion due to my imminent departure on leave, I circulated a minute of the orders which I suggested should be made as a result of that judgment. 2 Short minutes of order have been brought in by the plaintiffs this morning. The defendant has submitted that the declaratory order concerning unconscientious conduct is unnecessary, in view of the order for the setting aside of various transactions, and should not be made. The plaintiffs do not press for the making of that order. I agree that it is unnecessary in view of the order setting aside transactions and I shall not make the declaratory order. The reasons for the order setting aside the transactions appear sufficiently in my judgment. 3 The plaintiffs also ask for an order for the withdrawal of caveats which were in place to protect the mortgages that have been set aside and an order for the withdrawal of those caveats should be made. 4 A matter on which there has been some argument is that the defendant opposed the making of an order for costs in the general terms that the defendant pay the plaintiff's costs of the proceedings. Mr Forster, of Senior Counsel for the defendant, submitted that some allowance should be made in the defendant's favour because of the plaintiffs' failure to obtain orders under its claims under Barnes v Addy (1874) LR 9 Ch App 244, which were the claims recently added to the plaintiffs' case by the amendment allowed by White J to which I have referred in my judgment. 5 My view is that the Barnes v Addy claims did not constitute a sufficiently discrete subject matter to justify the making of a special order for costs in relation to their failure. The questions that were explored in relation to these claims were largely matters of the degree of the knowledge of certain matters by Mr Sharkey, the principal of the defendant. The same or similar questions as to the degree of his knowledge were necessarily agitated in relation to the general unconscionability claim, as appears from my judgment. 6 In the circumstances, no sufficient ground is shown for this matter to be dealt with specially in the costs order and I shall make the costs order in the general terms that the defendant pay the plaintiffs' costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.