Bondi Beach Astra Retirement Village Pty Ltd v Noon (No 2) [2009] NSWSC 893

New South Wales Supreme Court

CITATION : Bondi Beach Astra Retirement Village Pty Ltd v Noon (No 2) [2009] NSWSC 893

HEARING DATE(S) : Question of costs dealt with in chambers.

JUDGMENT DATE : 31 August 2009

JUDGMENT OF : Smart AJ

DECISION : Ninety per cent of one set of costs allowed to plaintiffs.

CATCHWORDS : Costs - two plaintiffs joined because of ambiguous agreement prepared on their behalf - prudent to join both plaintiffs but order only made and could only be made in respect of one - avoidance of artificial, complicated, lengthy and expensive costs assessments

LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules

CATEGORY : Consequential orders

Currabubula Holdings Pty Ltd & Anor v State Bank of NSW [2000] NSWSC 232 CASES CITED : Haviv Holdings Pty Ltd v Howards Storage World Pty Ltd (No 2) [2009] FCA 652 K & J Acquisitions Pty Ltd v Manauzzi & Anor [2009] NSWSC 279

PARTIES : Bondi Beach Astra Retirement Village Pty Ltd & CG Maloney Pty Ltd (Plaintiffs) GB & MJ Noon as Co-Executors of the Estate of the late BR Noon (Defendants)

FILE NUMBER(S) : SC 5436/06

COUNSEL : M Leeming SC (Plaintiffs) S Donaldson SC / DA Moujalli (Defendants)

SOLICITORS : Stephen Wawn & Associates (Plaintiffs) Pikes Lawyers (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Smart AJ

Monday 31 August 2009

5436/06 Bondi Beach Astra Retirement Village Pty Ltd & CG Maloney Pty Ltd v GB and MJ Noon as Co-Executors of the the Estate of the late BR Noon (No 2) JUDGMENT 1 HIS HONOUR: Consequent upon my Judgment of 2 June 2009, each of the parties made submissions as to costs and consented to the Court dealing with the question of costs in chambers. I have done so. 2 The plaintiffs sought an order that the defendants should pay their costs of the proceedings on an ordinary basis. The plaintiffs submitted that the defendants had not complied with s 56(3) of the Civil Procedure Act by persisting in raising as an issue that the buy back provisions of the contract were not annexed to, and formed part of, the contract of sale. This proved to be a non-issue once the conveyancing file of the former solicitors for the late B & J Noon was obtained. It was produced to the Court on the second day of the hearing. One of the unusual problems in the present case was that neither the vendor's solicitors nor the vendor held a counterpart of the contract of sale singed by B & J Noon. The plaintiffs' solicitors had an unsigned copy. Reliance was placed on the stamped copy contract executed by CG Maloney Pty Limited and the stamped and registered transfer. 3 The plaintiffs submitted that it was reasonable, given the ambiguous wording of the buy back provision, for both the vendor and the service company to sue. The wording of the buy back provision was ambiguous and difficult to interpret. It was drafted by the then solicitors for the vendor and left much to be desired. That caused many difficulties. 4 Given the unfortunate wording of the contractual documents, especially the Disclosure Statement, it was prudent for both the plaintiffs to sue. 5 The plaintiffs further submitted that there was one set of plaintiffs' costs with one firm of solicitors and one counsel acting for the plaintiffs, and one body of testimonial and documentary evidence advanced in support of the plaintiffs' case. The plaintiffs submitted that, likewise, there was one set of defendants' costs. 6 The plaintiffs submitted that the orders suggested by the defendants as appropriate, namely: