Supreme Court New South Wales Medium Neutral Citation: Bird v Anambah Land Pty Ltd [2016] NSWSC 1548 Hearing dates: On the papers Decision date: 09 February 2016 Jurisdiction: Equity - Expedition List Before: Stevenson J Decision: The plaintiff to pay the defendant's costs of the proceedings but that costs of experts be shared equally Catchwords: COSTS - where parties agreed to a dispute resolution regime in underlying agreement including as to expert determination – where plaintiff nonetheless commenced proceedings seeking declaratory relief as to the construction of the agreement – where expert ultimately decided that question adversely to the plaintiff and parties agreed proceedings must be dismissed – whether plaintiff should pay the costs of the proceedings Category: Costs Parties: Deborah Michelle Bird (Plaintiff) Anambah Land Pty Ltd (Defendant) Representation: Counsel: A McInerney SC (Plaintiff) G Laughton SC (Defendant) Solicitors: Nolan Commercial Law Practice (Plaintiff) Mullane & Lindsay Solicitors (Defendant) File Number(s): SC 2015/265567 Judgment 1. The plaintiff, Ms Bird, commenced these proceedings on 10 September 2015 seeking a declaration as to the proper construction of a Call Option Agreement ("the Agreement") dated 28 May 2007 between her and the defendant, Anambah Land Pty Ltd. 2. The Agreement contained a dispute resolution clause which provided that, if a dispute arose in relation to the Agreement the parties would engage in an alternative dispute resolution process including the appointment of an expert. 3. The Agreement provided that neither party was entitled to commence proceedings until the dispute resolution procedure set forth in the Agreement had been enlivened. 4. The parties debated, by solicitors' correspondence, the proper construction of the Agreement between May 2013 and September 2015. 5. Shortly before the commencement of proceedings, Ms Bird, through her solicitor, wrote to Anambah's solicitor suggesting that the question of the proper construction of the relevant clause of the Agreement was best suited to judicial determination and inviting Anambah to consent to Ms Bird approaching the court for declaratory relief. 6. Anambah's solicitors did not respond to that correspondence. 7. Once proceedings were commenced, the matter was referred to mediation. 8. Thereafter the parties agreed to refer the question of construction to Mr Kevin Lindgren QC for expert determination and to invite the President of the Australian Property Institute to appoint a valuer to determine the value of land referred to in the Agreement in accordance with Mr Lindgren's determination. 9. Mr Lindgren has determined the question of construction in favour of Anambah. The property will now be valued in accordance with that determination. 10. The matter was before me in the Expedition List on 5 February 2016. By consent I ordered that the proceedings be dismissed and directed that the parties exchange submissions concerning costs. 11. It is agreed that I should deal with costs on the papers. 12. It is not usually appropriate for the Court to determine the costs of proceedings where there has been no trial of the proceedings on the merits. Nonetheless, cases can arise where it is appropriate for a court to do so. 13. In my opinion this is such a case. 14. I am not satisfied that it was reasonable for Ms Bird to commence proceedings in the face of the provision in the Agreement for expert determination of questions such as the proper construction of the Agreement. 15. Following commencement of proceedings, the parties, in substance, have resolved the matter in the manner contemplated by the dispute resolution clause in the Agreement. And the matter has been resolved in Anambah's favour. 16. In all those circumstances, my opinion is that, subject to what I say below, Ms Bird should pay Anambah's costs of the proceedings. 17. The dispute resolution clause provided that each party should equally bear the relevant expert's costs. 18. I see no reason why that regime should not obtain notwithstanding the commencement of proceedings. 19. I order that the parties bear equally costs of Mr Kevin Lindgren QC and Mr Michael Dick. Otherwise I order that the plaintiff pay the defendant's costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2016