Lean v Clarence Property Corporation Ltd (No 2) [2012] NSWSC 1513

Supreme Court New South Wales

Medium Neutral Citation: Lean v Clarence Property Corporation Ltd (No 2) [2012] NSWSC 1513 Hearing dates: Written submissions on costs received 07.11.12, 15.11.12 and 16.11.12 Decision date: 30 November 2012 Jurisdiction: Common Law Before: Beech-Jones J Decision: Defendant to pay Plaintiff's costs in this Court and in the Local Court. Catchwords: PRACTICE AND PROCEDURE - application to re-open - informal application made by solicitor to Judge - no satisfactory explanation for delay - no proper basis to re-open out of time. COSTS - whether point successful on was first raised on appeal - application for indemnity costs. Legislation Cited: Civil Procedure Act 2005 - s 14 Land Title Act 1994 (Qld) - s 184(3) Cases Cited: - Armstrong v Boulton [1990] VR 215 - Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137; [1994] 4 All ER 464 - Lean v Clarence Property Corporation Ltd [2012] NSWSC 1267 Category: Costs Parties: Peter Richard Lean (Plaintiff) Clarence Property Corporation Limited (Defendant) Representation: Counsel: D. Neggo (Plaintiff) N.J.T. Smith (Defendant) Solicitors: Spinks Eagle Lawyers (Plaintiff) Balmain Lawyers (Defendant) File Number(s): 2012/172092

EX TEMPORE Judgment 1On 25 October 2012, I published a judgment in which I allowed the appeal of the plaintiff in this Court, Peter Richard Lean, against a judgment entered against him in the Local Court in favour of the defendant, Clarence Property Corporation Ltd ("Clarence"): Lean v Clarence Property Corporation Ltd [2012] NSWSC 1267 ("Lean (No 1)"). 2In the Local Court proceedings Clarence sued Mr Lean as a guarantor of rent owing under a guarantee he had given in respect of the obligations of Dog & Parrot Pty Ltd ("Dog & Parrot") as a tenant of some retail premises. The guarantee executed by Mr Lean was given in favour of the party described as the "Lessor" which, at the time he executed it, was Robina Land Corporation Pty Ltd ("Robina"). The definition of lessor in the guarantee extended to Robina's "successors and/or assigns". Robina was the owner of the land. The land was transferred to the Public Trustee for Queensland and then to Clarence. Dog & Parrot remained in occupation throughout. 3I upheld the appeal in Lean (No 1) on the basis that Clarence had not adduced any evidence before the Local Court to support the contention that the Public Trustee was a "successor or assignee" of the lessor's obligations and rights from the original lessee, Robina (Lean (No 1) at [44]). This meant that Clarence, which was an assignee of the Public Trustee's registered lease with Dog & Parrot, also could not demonstrate it was a successor or assignee of Robina. Thus, I concluded that Clarence did not have the benefit of the guarantee given by Mr Lean. 4At the end of my judgment in Lean (No 1) I ordered that (at [50]): (1)The Appeal be allowed. (2)The orders made by the Local Court on 3 May 2012 in proceedings 2011/327799 be set aside. (3)In lieu thereof: (a)judgment for the Defendant in the Local Court proceedings 2011/327799. (b)the Defendant in this Court pay the Plaintiff in this Court's costs of Local Court proceedings 2011/327799. (4)The Defendant pay the Plaintiff's costs of these proceedings. 5These orders reflected the relief sought by Mr Lean in his amended summons filed in this Court. 6At [49] of Lean (No 1) I stated, "If either party seeks to contend for a different form of costs order then they should make application within the period allowed by the Uniform Civil Procedure Rules 2005, r 36.16(3B)." 7Rules 36.16(3A) and (3B) of the Uniform Civil Procedure Rules ("UCPR") provide: "(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered." (3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered." 8Within fourteen days of the publication of the judgment in Lean (No 1), and the entry of the above orders, I was notified by Clarence that it wished to challenge the costs orders. Accordingly, of my own motion, I set aside orders 3(b) and 4 and made directions for the filing of written submissions. Clarence filed submissions seeking orders for costs in its favour. Mr Lean responded, and in addition sought an order for indemnity costs as well as an order that Clarence repay to him certain amounts paid pursuant to the Local Court judgment. Upon receipt of Mr Lean's submissions, I made an order granting Clarence the opportunity to file submissions addressing the additional orders sought by Mr Lean. The parties were reminded that submissions on any additional issues would not be considered without a grant of leave. Clarence promptly filed submissions responding to the matters raised by Mr Lean. Those submissions were signed by its counsel.