University of New South Wales International House Ltd v University of New South Wales (No.2) [2017] NSWSC 306

Supreme Court New South Wales

Medium Neutral Citation: University of New South Wales International House Ltd v University of New South Wales (No.2) [2017] NSWSC 306 Hearing dates: On the papers Date of orders: 31 March 2017 Decision date: 31 March 2017 Jurisdiction: Equity Before: McDougall J Decision: See at [23]. Catchwords: PROCEDURE – whether declaratory relief to reflect limited success on the cross-claim should be granted – COSTS – where each party had limited success – where each party opposed each of the issues advanced – each party to pay their own costs – COSTS – Attorney-General entitled to costs as a necessary party in a charitable trust case Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Tantau v MacFarlane [2010] NSWSC 224 Category: Costs Parties: University of New South Wales International House Ltd (Plaintiff) University of New South Wales (First defendant) Attorney-General of New South Wales (Second defendant) Representation: Counsel: TGR Parker SC / JG Simpkins / D Habashy (Plaintiff) D Murr SC / TL Wong (First defendant) H El-Hage (Second defendant)

Solicitors: Johnson Winter & Slattery (Plaintiff) Bartier Perry (First defendant) NSW Crown Solicitor's Office (Second defendant) File Number(s): 2016/173505

Judgment 1. HIS HONOUR: On 5 December 2016, I ordered that the defendant (the University) be restrained from giving effect to a notice dated 4 April 2016 whereby it purported to terminate an agreement between it and the plaintiff (IHL). Under that agreement, IHL managed (as for many years it had done) the University College known as "International House". 2. As part of my reasons [1] , I reserved costs and directed a regime for submissions as to costs. 3. My reasons referred to the University's cross-claim, as did the issues (as stated by the parties) that were set out [2] . Unfortunately, although I dealt with the specific issues raised by the cross-claim (including issues 8 and 9), I made no formal order disposing of the cross-claim. 4. I should note that the Attorney-General was joined as a defendant. She appeared by Counsel, and (as one would expect) put helpful submissions to the court. 5. IHL seeks orders dismissing the University's cross-claim, and an order that costs follow the events (namely, that it succeeded both on its claim and on the University's cross-claim). The University asks that I grant declaratory relief to reflect such success as it had had on the cross-claim (because I concluded that the reserves generated over the years by the operation of International House were trust property [3] ). The University also seeks orders that it and IHL should bear their own costs. 6. The Attorney-General seeks an order that her costs be paid, but made no submission as to which of the other parties should be liable for them. IHL made no specific submission as to the Attorney-General's costs. The University accepted that she should have her costs, and proposed that it and IHL should share them. 7. As to the declaration sought by the University, IHL contended that the issue as to characterisation of its reserves was dependent on the proposition that the management agreement had been validly terminated. It submitted that, since the management agreement has not been validly terminated, the court's conclusion on that point (reflected in issue 8) was obiter. 8. The parties' submissions amplified the outlines that I have given. It is not necessary to go into further detail.