Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2019] NSWSC 238

Supreme Court New South Wales

Medium Neutral Citation: Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2019] NSWSC 238 Hearing dates: 15 February 2019 Date of orders: 08 March 2019 Decision date: 08 March 2019 Jurisdiction: Common Law Before: Wright J Decision: (1) A declaration that the amount of costs to which the defendant, Capitol Carpets Pty Ltd, is entitled under both: (a) the orders relating to the costs of the appeal to the Supreme Court and costs of the Local Court proceedings made by McCallum J in proceeding number 2015/351848 on 16 December 2016; and (b) the order concerning the costs of the application for leave to appeal made by the Court of Appeal in proceeding number 2016/383377 on 8 September 2017, is $97,500, as agreed between the defendant and the plaintiff, Schwartz Family Co Pty Ltd.

(2) An order that the parties have liberty to apply. Catchwords: CONTRACTS – mistake – agreement as to amount of costs to be paid under orders for costs "as agreed or assessed" – where party in whose favour costs were awarded was under a mistake as to the total amount of costs incurred – agreed amount of costs paid "in full and final settlement" – whether common mistake or unilateral mistake – no unconscionable conduct and no sharp practice – no other basis for equitable intervention – agreement not liable to be set aside – relief not refused on discretionary grounds Cases Cited: Australia Estates Pty Ltd v Cairns City Council [2005] QCA 328 Baden v Société Générale pour Favoriser le Développement du Commerce et de l'Industrie en France SA [1993] 1 WLR 509 Barnes v Addy (1874) LR 9 Ch App 244 Bartlett v Coomber & Anor [2008] NSWCA 100 Blackley Investments Pty Ltd v Burnie City Council (No 2) (2011) 21 Tas R 98; [2011] TASFC 6 Eroc Pty Ltd v Amalg Resources NL [2003] QSC 074 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679 Hawcroft General Trading Co Pty Ltd v Hawcroft [2017] NSWCA 91 Hawcroft v Hawcroft General Trading Co Pty Ltd [2016] NSWSC 555 Lerama Pty Ltd v Wortho Pty Ltd [2008] NSWSC 1307 Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79 Mohamed v Farah [2004] NSWSC 482 Rees v Rees [2016] VSC 452 Solle v Butcher [1950] 1 KB 671 Svanosio v McNamara (1956) 96 CLR 186; [1956] HCA 55 Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5 Tutt v Doyle (1997) 42 NSWLR 10 Westpork Pty Ltd v Bio-Organics Pty Ltd [2018] WASC 291 Texts Cited: On Equity (Young P, Croft C and Smith M, 2009, Lawbook Co) Category: Principal judgment Parties: Schwartz Family Co Pty Ltd (Plaintiff) Capitol Carpets Pty Ltd (Defendant) Representation: Counsel: Mr J Sleight with Mr C Mulvey (Plaintiff) Ms J Granger (Defendant)