Papas v Jabba Constructions Pty Ltd [2010] NSWSC 361

New South Wales Supreme Court

CITATION : Papas v Jabba Constructions Pty Ltd [2010] NSWSC 361

HEARING DATE(S) : 19 April 2010

JUDGMENT DATE : 19 April 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 19 April 2010

DECISION : Order that the third cross-defendant pay the defendant/cross-claimant's costs of the proceedings against it. The costs payable by the third cross-defendant to the defendant/cross-claimant would include the costs of today's applications. The order that there be no order as to costs as between the plaintiffs and the defendant will likewise cover the costs of today.

CATCHWORDS : COSTS – action for specific performance of contract for sale of land subject to lease – real dispute between purchaser and lessee – lessee not joined as additional defendant on originating process – vendor filed cross-summons joining purchaser and lessee – purchaser and lessee reached confidential settlement with no order as to costs – vendor submitted to court orders - COSTS – whether purchaser entitled to costs – vendor acted reasonably in not accepting purchaser's offer of compromise – offer of compromise would not resolve issues without lessee's agreement – no basis for awarding indemnity costs against vendor – court cannot be satisfied of purchaser's success against vendor without full hearing on merits – operation of rule in Tasker v Small – joinder of lessee necessary for determination of all matters in dispute – no basis for awarding costs on ordinary basis against vendor – lessee would be liable for purchaser's costs had purchaser succeeded after a trial – lessee and purchaser compromised their claims as to costs against each other - COSTS – whether vendor entitled to costs – vendor acted reasonably in filing cross-summons to bring all issues to court for determination – lessee to pay vendor's costs of cross-summons – cost assessor to determine what costs fairly and reasonably incurred