Nowland v Maiolla Casbee Properties Pty Ltd v Eastwood Air Conditioning Pty Ltd (No 2) [2014] NSWSC 289

Nowland v Maiolla Casbee Properties Pty Ltd v Eastwood Air Conditioning Pty Ltd (No 2) [2014] NSWSC 289

In the first proceeding, although the plaintiffs failed on certain claims, they succeeded on their main cause for specific performance and substantial relief sought. The issues of failure were alternative and did not dominate or substantially expand the inquiry; hence, the first defendant is to pay the plaintiffs’ costs. The second defendant merely a proper party takes no costs order. In the second proceeding, each party to bear its own costs because the main claim failed (lease validity), most costs were incurred on that failed issue, and the only successful claim (occupation fee) was introduced later and after a Calderbank offer for a higher sum was rejected reasonably.

Parties
First Plaintiff: Dean Nowland; Second Plaintiff: Taimi Nowland; First Defendant: Gian Franco Maiolla; Second Defendant: The Casbee Group Pty Limited; Plaintiff (2012/136262): Casbee Properties Pty Limited; Defendant (2012/136262): Eastwood Air Conditioning Pty Limited
Jurisdiction
Australia
Judgment Date
19 March 2014
Procedural Posture
Equity Division Costs and Specific Performance / Final Judgment and Orders After Substantive Reasons for Judgment
Outcome
Substantive orders for specific performance and associated consequences, as well as judgments for amounts found due. Parties ordered to bear costs as specified per proceeding.
Legal Topics
Costs, Specific Performance, Oppression Proceedings, Lease Validity, Occupation Fee
Equity Company Law Contract Civil Procedure Costs Specific Performance Oppression Proceedings Lease Validity +1 more

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Parties

Dean Nowland

First Plaintiff

Taimi Nowland

Second Plaintiff

Gian Franco Maiolla

First Defendant

The Casbee Group Pty Limited

Second Defendant

Casbee Properties Pty Limited

Plaintiff (2012/136262)

Eastwood Air Conditioning Pty Limited

Defendant (2012/136262)

Procedural Posture

Equity Division Costs and Specific Performance / Final Judgment and Orders After Substantive Reasons for Judgment

Legal Issues

  1. 1 What is the appropriate order for costs in light of success and failure on various claims and parties' roles?
  2. 2 Whether plaintiffs are entitled to costs given partial lack of success on alternative claims in oppression and estoppel?
  3. 3 Should Calderbank offer affect costs orders in the second proceeding?

Ratio Decidendi

In the first proceeding, although the plaintiffs failed on certain claims, they succeeded on their main cause for specific performance and substantial relief sought. The issues of failure were alternative and did not dominate or substantially expand the inquiry; hence, the first defendant is to pay the plaintiffs’ costs. The second defendant merely a proper party takes no costs order. In the second proceeding, each party to bear its own costs because the main claim failed (lease validity), most costs were incurred on that failed issue, and the only successful claim (occupation fee) was introduced later and after a Calderbank offer for a higher sum was rejected reasonably.

Court Disposition

Substantive orders for specific performance and associated consequences, as well as judgments for amounts found due. Parties ordered to bear costs as specified per proceeding.

Orders

  • In 2012/85607, the first defendant to pay the plaintiffs' costs on the ordinary basis.
  • In 2012/85607, no order for costs for or against the second defendant; each party to pay own costs in so far as they involve the second defendant.