Quest Rose Hill Pty Limited v The Owners Corporation of Strata Plan 64025 and Anor [2013] NSWSC 1810

Supreme Court New South Wales

Medium Neutral Citation: Quest Rose Hill Pty Limited v The Owners Corporation of Strata Plan 64025 and Anor [2013] NSWSC 1810 Hearing dates: 5 December 2013 Decision date: 05 December 2013 Jurisdiction: Equity Division Before: Sackar J Decision: See paragraph [11] Catchwords: PROCEDURE - judgments and orders - clarification of costs orders. Legislation Cited: - Cases Cited: Quest Rose Hill Pty Limited v The Owners Corporation of Strata Plan 64025 and Anor [2012] NSWSC 1548 Quest Rose Hill Pty Limited v The Owners - Strata Plan No. 64025 & Anor [2013] NSWSC 670 Texts Cited: - Category: Procedural and other rulings Parties: Quest Rose Hill Pty Limited (Plaintiff) Keith Bernard White (representing the lot owners referred to in the amended schedule 4 in the further amended second cross-claim) (Second Defendant) Representation: Counsel: Dr A Greinke (Plaintiff) R Angyal SC (Second Defendant) Solicitors: Lodhia Lawyers (Plaintiff) Le Page Lawyers (Second Defendant) File Number(s): 2010/342330

Judgment 1By a motion dated 14 November 2013, the plaintiff seeks orders making more specific provision for the implementation or enforcement of an order made on 24 April 2013 granting specific performance of a lease between the plaintiff and second defendant (the lease). The order for specific performance, among other orders made on 24 April 2013, was to give effect to the principal judgment in this matter, which was handed down on 13 December 2012 (Quest Rose Hill Pty Limited v The Owners Corporation of Strata Plan 64025 and Anor [2012] NSWSC 1548). The plaintiff's motion is relevantly in these terms: 1. Each of the owners of lots in Strata Plan 64025, who are represented by the Second Defendant, instruct Ken Smith (by their solicitor or otherwise) to provide the document for execution for his appointment by 4:00pm on 29 November 2013. 2. Each of the owners of lots in Strata Plan 64025, who are represented by the Second Defendant, execute (by their solicitor or otherwise) the written terms of appointment of Ken Smith within five business days of Mr Smith providing to their solicitor this document for execution. 3. These orders to be entered forthwith. 2The second defendant filed a motion on 29 November 2013 seeking (among other things) to vacate the order for specific performance made on 24 April 2013, on the basis that the lease was terminated on 29 November 2013. The second defendant's motion is relevantly in these terms: 1. A declaration that each of the leases set out in Annexure 1 to this Notice of Motion was terminated on 29 November 2013. 2. An order that by 19 December 2013 the Plaintiff give vacant possession of each of the lots the subject of the leases set out in Annexure 1 to this Notice of Motion to the respective owner or owners of the lot. 3. Directions for the determination of the damages suffered by the owners of the lots the subject of the leases set out in Annexure 1 to this Notice of Motion by reason of the Plaintiff's repudiation of those leases, including the joinder of Paul Steve Constantinou as a cross-defendant. 4. An order that Order 3 made on 24 April 2013 and entered on 30 April 2013 be vacated except insofar as it provides for the determination of the rent payable under the leases set out in Annexure 1 for the following periods: (4.1) July 2011 - 30 June 2012 (4.2) 1 July 2012 - 30 June 2013 (4.3) 1 July 2013 - 29 November 2013. 5. An order that Order 8 made on 24 April 2013 and entered on 30 April 2013 be varied by amending "10 July 2013" to "1 March 2014". 6. Directions for the determination of the extent to which the Plaintiff has complied with Mr McDermott's award dated 14 October 2008 and/or paragraphs 252 and 253 of the Court's judgment delivered on 13 December 2012. 7. An order that the Plaintiff provide security for the Second and/or Third Defendants' costs of the proceedings in the amount of $194,377.31, in default of which the Plaintiff's claims in the proceedings be stayed. 8. An order that if, on completion of the reference required by Order 4 made on 24 April 2013 and entered on 30 April 2013, the Second Defendant is obliged to pay any amount to the Plaintiff by virtue of Order 1, the Second Defendant may set-off against that amount: a. The costs that the Plaintiff was ordered to pay to the Second Defendant on 28 May 2013 and 26 June 2013; b. The costs that the Plaintiff was ordered to pay to the Third Defendant on 3 August 2012 or thereafter; c. Any amount payable by the Plaintiff to the Second Defendant pursuant to Mr McDermott's award dated 14 October 2008 and/or paragraphs 252-253 of the Court's judgment delivered on 13 December 2013. 3Following argument during the hearing of the motions before me, the second defendant abandoned paragraphs one to four of his motion. The relief sought by the second defendant in paragraph five of his motion was consented to by the plaintiff. The parties agreed that paragraph six of the second defendant's motion would not be agitated until a later time (if that becomes necessary), and should be stood over to 5 February 2014 at 9:30am before me for directions. The second defendant did not press paragraphs seven and eight. 4As a consequence of the abandonment of paragraphs one to four of the second defendant's motion, the relief sought by the plaintiff in paragraphs one to three of its motion should be granted. 5The only issue that remained to be determined in respect of the motions was that of costs. The plaintiff sought an order that the second defendant pay the plaintiff's costs of and incidental to the plaintiff's motion on an indemnity basis. The defendant sought that no order be made as to costs. As submitted by counsel for the plaintiff, costs should follow the event, and therefore, clearly in my mind, the second defendant should pay the costs of the plaintiff in respect of both motions. However, I see no sufficient reason for ordering that such costs be assessed on an indemnity basis. 6The parties agreed to prepare and send to my Associate short minutes of order, to be entered forthwith, giving effect to this outcome. 7In addition to this, the second defendant seeks clarification as to the precise form of costs orders that should be made in relation to the principal proceedings, having regard to my costs judgment already handed down on 28 May 2013 (Quest Rose Hill Pty Limited v The Owners - Strata Plan No. 64025 & Anor [2013] NSWSC 670) and having regard also to subsequent discussions in court on 26 June 2013. 8Paragraph [16] of the costs judgment in these proceedings (Quest Rose Hill Pty Limited v The Owners - Strata Plan No. 64025 & Anor [2013] NSWSC 670) provided: [16] I consider on balance a fair outcome again is that the plaintiff pay 50% of the second and third defendants' cost of the trial. 9On 26 June 2013, when the matter was re-listed before me, I confirmed, as a result of an inquiry by one of the parties, that the reference to "trial" should in fact be "proceedings". This was accepted by counsel then acting for the second defendant, and is borne out in the relevant transcript for 26 June 2013. 10At paragraph [18] of the costs judgment, I said: [18] So far as the third defendant is concerned the plaintiff discontinued the case against him on 3 August 2012 in the course of obtaining leave to file a second further amended statement of claim. An order for costs was made that the plaintiff pay any costs thrown away by reason of those amendments. In my view that order should clearly stand. Whilst it may be said that the case against Mr White in his personal capacity raised some separate issues as opposed to those against the represented lot owners, I am not able to determine on this occasion precisely what argument or arguments were abandoned, but they can be taken up if costs cannot be agreed in the taxation and assessment of Mr White's costs thrown away. 11Contrary to the second defendant's present assertions, the intended effect of this paragraph is not that the plaintiff pay the third defendant's costs of the entire proceedings. The costs of the proceedings generally, as between the plaintiff and third defendant, were dealt with in paragraph [16]. Paragraph [18] was intended to deal specifically only with those costs "thrown away by reason of [the plaintiff's] amendments"; that is, those costs thrown away by reason of the plaintiff's discontinuance as against the third defendant. To put it another way, the plaintiff should pay the costs of the third defendant in respect of the issues (if any) that were agitated as between the plaintiff and the third defendant (i.e. Mr White in his personal capacity) which were not agitated as between the plaintiff and the second defendant (i.e. Mr White representing various lot owners). Otherwise, the plaintiff is to pay only 50% of the third defendant's costs.