Supreme Court New South Wales Medium Neutral Citation: Senses Northbridge Pty Ltd v Sahab Holdings Pty Ltd (No 2) [2019] NSWSC 1458 Hearing dates: On the papers – submissions 1 October 2019 Decision date: 30 October 2019 Jurisdiction: Equity Before: Emmett AJA Decision: 1. Except in so far as orders for costs have already been made, defendant to pay plaintiff's costs up to 26 March 2019 on the ordinary basis and pay costs after that date on the indemnity basis, save for costs in relation to the question of conventional estoppel. 2. The plaintiff to pay the defendant's costs in relation to the question of conventional estoppel. Catchwords: COSTS – Bases of quantification – Ordinary basis – Indemnity basis – Whether costs incurred following amendment of plaintiff's pleadings to incorporate conventional estoppel claim (which was unsuccessful) should be excluded Legislation Cited: Supreme Court Act 1970 (NSW) Cases Cited: Senses Northbridge Pty Ltd v Sahab Holdings Pty Ltd [2019] NSWSC 1201 Category: Costs Parties: Senses Northbridge Pty Ltd (Plaintiff) Sahab Holdings Pty Ltd (Defendant) Representation: Counsel: S Epstein SC with G Rubagotti (Plaintiff) M Pesman SC (Defendant) Solicitors: Baron + Associates (Plaintiff) Piper Alderman (Defendant) File Number(s): 2018/390352 Judgment 1. On 11 September 2019, I published my reasons (the principal reasons) for concluding that Senses Northbridge Pty Ltd (Senses) is entitled to relief in the nature of an order for specific performance [1] and directed the parties being in short minutes to give effect to the conclusions indicated in the principal reasons. On 24 September 2019, I ordered Sahab Holdings Pty Ltd (Sahab) to deliver to Senses a signed development application within three business days of Senses supplementing the relevant development application with a report incorporating the views of Mr Benjamin Dewhurst. 2. In addition, I directed that the question of costs be determined without an oral hearing. The parties were directed to file any evidence in relation to the question of costs together with written submissions within seven days. I have now received written submissions together with an affidavit sworn by Mr Neil Palmer on 1 October 2019. 3. Senses seeks an order that, except in so far as orders for costs have already been made, Sahab pay Senses' costs up to 26 March 2019 on the ordinary basis and pay the costs after that date on the indemnity basis. On the other hand, Sahab submits that the following orders should be made: (a) the defendant to pay the plaintiff's costs up to 27 March 2019 on the ordinary basis; (b) the defendant to pay the plaintiff's costs on the indemnity basis from 28 March 2019 to 11 June 2019; (c) the plaintiff to pay the defendant's costs from 12 June 2019 to 7 August 2019; and (d) note that the costs orders in (a) to (c) above do not include any costs incurred in relation to the plaintiff's claim for damages. 1. Thus, the parties are of one mind as to the costs up to 12 June 2019. That consensus is derived from an offer made on behalf of Senses on 27 March 2019. By that offer, Senses proposed that Sahab comply with prayer one of the relief claimed in the amended statement of claim by delivering to Senses a signed development application in the form that was, in fact, the subject of the order made on 24 September 2019. In consideration for doing so, Senses would consent to orders dismissing the proceedings with no order as to costs. That would have entailed forgoing both costs and damages under s 68 of Supreme Court Act 1970 (NSW), as claimed in the statement of claim. The offer was not accepted. 2. In the events that have occurred, Senses has obtained the relief that it sought, Sahab is prepared to consent to a substantial order for costs and the claim by Senses for damages under s 68 is still on foot. On that basis, Senses has obtained a result more favourable than that proposed by its offer. 3. The basis upon which Sahab resists the orders proposed by Senses is that, at an aborted hearing of the proceedings before Sackar J on 11 and 12 June 2019, Senses applied and was granted leave to amend its statement of claim. Up to that time, Senses advanced no claim based on conventional estoppel. As a result of the amendment permitted by Sackar J, Senses made a claim relying on both conventional and promissory estoppel. Sackar J ordered Senses to pay the costs thrown away by reason of the adjournment of the hearing and the amendments to the statement of claim. His Honour also directed Sahab to serve any further evidence on which it wished to rely in relation to its proposed conventional estoppel claim. 4. Clearly enough, there is no basis for disturbing orders that have already been made. On the other hand, Sahab should not be required to pay the costs of the unsuccessful conventional estoppel claim since, ultimately, Senses failed to establish facts necessary to found its conventional estoppel claim. All of the affidavit evidence served after 12 June 2019 went to that claim. Senses will have incurred costs in relation to those affidavits and Sahab will have incurred costs in considering those affidavits. 5. In the circumstances, the appropriate order is that proposed on behalf of Senses with a qualification by excluding the costs of all affidavits filed after 12 June 2019 and deduction of the costs of Sahab in relation to those affidavits. It may be appropriate for the parties to agree on lump sums rather than incur the cost of assessments. ***** Endnote 1. See Senses Northbridge Pty Ltd v Sahab Holdings Pty Ltd [2019] NSWSC 1201 at [97]. 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: 30 October 2019