Higgins v Statewide Developments Pty Ltd [2010] NSWSC 383

New South Wales Supreme Court

CITATION : Higgins v Statewide Developments Pty Ltd [2010] NSWSC 383

HEARING DATE(S) : 03/03/10, 04/03/10, 05/03/10 Written submissions: 24/03/10, 30/03/10, 06/04/10

JUDGMENT DATE : 5 May 2010

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Order that the defendant pay one-sixth of the plaintiff's costs as agreed or assessed on the ordinary basis, there being otherwise no order as to costs so that the costs should, as to the balance, rest where they fall

CATCHWORDS : PROCEDURE - costs - departing from the general rule - where plaintiff failed on all claims except claim for exercise of discretion in his favour - unsuccessful claims involved bulk of evidence and hearing time - appropriate to award part of costs only

LEGISLATION CITED : Conveyancing Act 1919, s 55(2A)

CATEGORY : Consequential orders

Flight v Booth (1834) 1 Bing NC 370; 131 ER 1160 CASES CITED : Higgins v Statewide Developments Pty Ltd [2010] NSWSC 183 Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40-748 Madden v McConnell [2001] NSWSC 1051

PARTIES : Damian Paul Higgins - Plaintiff Statewide Developments Pty Ltd - Defendant

FILE NUMBER(S) : SC 2009/289007

COUNSEL : Ms J F Merkel - Plaintiff Mr R R I Harper SC - Defendant

SOLICITORS : Paladin Law Pty Limited - Plaintiff Mills Oakley Lawyers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

WEDNESDAY 5 MAY 2010

2009/289007 DAMIAN PAUL HIGGINS v STATEWIDE DEVELOPMENTS PTY LTD JUDGMENT 1 I am dealing with the question of costs consequent upon my judgment of 16 March 2010: Higgins v Statewide Developments Pty Ltd [2010] NSWSC 183. 2 The plaintiff mounted four claims: (a) a claim that his purported rescission was justified by special condition 26.2; (b) a claim that his purported rescission was justified by the rule in Flight v Booth (1834) 1 Bing NC 370; 131 ER 1160; (c) a claim that there was a consensual oral rescission; (d) a claim for the exercise in his favour of the discretion given to the court by s 55(2A) of the Conveyancing Act 1919. 3 The defendant, by its cross-claim, sought damages, interest and a declaration that it was entitled to keep the deposit. 4 All claims of both parties failed, except that the plaintiff was successful in obtaining the exercise of the s 55(2A) discretion in his favour. This resulted in his recovering the deposit of $76,100. 5 The plaintiff contends that he should therefore be awarded his costs. He also says that, since he offered to settle as long ago as 10 September 2008 on the basis that he should receive $60,000 plus costs, there are grounds for ordering that his costs be assessed on the indemnity basis from a date shortly after the making of the offer. 6 The defendant's response is that the settlement offer was made at a time before the proceedings had been transferred from the District Court to the Supreme Court (which occurred in May 2009) and when the relief the plaintiff eventually obtained was unavailable to him. Because only the Supreme Court has jurisdiction under s 55(2A), a claim under that section was not effectively added until the transfer from the District Court had occurred. 7 The defendant's submission should be accepted on this aspect. There is no proper basis for comparison between the eventual result and an offer made at a time when that result was impossible to achieve. 8 The defendant also points to the fact that the issues on which the plaintiff was unsuccessful took up much more time and effort than the narrow issue on which he succeeded. The factual aspects of that issue were minimal. The defendant, relying on Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40-748, therefore argues that it is reasonable that the plaintiff bear the expense of litigating the portion on which he has failed and, going further, that he should pay the defendant's costs referable to that portion. 9 I am satisfied that, in the way described by Hamilton J in Madden v McConnell [2001] NSWSC 1051, this is a case in which the successful plaintiff should have a costs order on the footing that costs follow the event but that he should have only part of the sum that would otherwise be awarded. The issue on which the plaintiff was successful involved very little evidence. The significant bulk of the hearing was spent on aspects on which the plaintiff failed. 10 I accept the submission that, had the case been confined to the s 55(2A) aspect, the hearing would have occupied half a day rather than three days. It is, I think, fair to extend that apportionment to the case as a whole. 11 I therefore order that the defendant pay one-sixth of the plaintiff's costs as agreed or assessed on the ordinary basis, there being otherwise no order as to costs so that the costs should, as to the balance, rest where they fall. **********