Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229

Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229

Because Mr and Mrs Lawrence had no entitlement to remain in possession but termination and possession orders for the residential tenancy had to be dealt with by NCAT, the transferred CTTT proceedings were remitted to NCAT. Mrs Gunner was substantially successful overall, including on the main cross-claim issues, so Mr and Mrs Lawrence were ordered to pay 95 per cent of her costs, excluding specified affidavit costs. Indemnity costs from 2 August 2013 were warranted because Mrs Gunner made a genuine Calderbank offer that she bettered at judgment, it was unreasonable not to accept it, and the proceedings brought by Mr and Mrs Lawrence lacked a proper basis.

Jurisdiction
Australia
Judgment Date
21 August 2015
Procedural Posture
Equity Proceedings Involving Claims and Cross Claims, Including Possession Proceedings Transferred From the CTTT / Final Orders Following Earlier Judgment and Determination of Costs
Outcome
Plaintiffs' further amended statement of claim dismissed; judgment for the defendant/cross-claimant against the plaintiffs/cross-defendants for $315,000 plus interest; transferred CTTT proceedings remitted to NCAT; further amended cross-claim otherwise dismissed; plaintiffs/cross-defendants ordered to pay 95 per...
Legal Topics
['final Orders' 'remitter to Ncat' 'possession of Residential Premises' 'proportional Costs Order' 'indemnity Costs' 'calderbank Offer']
['civil Procedure' 'costs' 'residential Tenancies' 'equity'] ['final Orders' 'remitter to Ncat' 'possession of Residential Premises' 'proportional Costs Order' 'indemnity Costs' 'calderbank Offer']

Case Brief

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Procedural Posture

Equity Proceedings Involving Claims and Cross Claims, Including Possession Proceedings Transferred From the CTTT / Final Orders Following Earlier Judgment and Determination of Costs

Legal Issues

  1. 1 ['Whether proceedings transferred from the CTTT should be remitted to NCAT for determination of termination and possession issues under the Residential Tenancies Act 2010 (NSW).' "Whether the Court should make declarations as to Mrs Gunner's entitlement to termination of the residential tenancy agreement and possession." 'Whether a proportional costs order should be made because Mrs Gunner was successful overall but not on every issue.' "Whether indemnity costs should be ordered from 2 August 2013 by reason of the Calderbank offer and the nature of Mr and Mrs Lawrence's case."]

Ratio Decidendi

Because Mr and Mrs Lawrence had no entitlement to remain in possession but termination and possession orders for the residential tenancy had to be dealt with by NCAT, the transferred CTTT proceedings were remitted to NCAT. Mrs Gunner was substantially successful overall, including on the main cross-claim issues, so Mr and Mrs Lawrence were ordered to pay 95 per cent of her costs, excluding specified affidavit costs. Indemnity costs from 2 August 2013 were warranted because Mrs Gunner made a genuine Calderbank offer that she bettered at judgment, it was unreasonable not to accept it, and the proceedings brought by Mr and Mrs Lawrence lacked a proper basis.

Court Disposition

Plaintiffs' further amended statement of claim dismissed; judgment for the defendant/cross-claimant against the plaintiffs/cross-defendants for $315,000 plus interest; transferred CTTT proceedings remitted to NCAT; further amended cross-claim otherwise dismissed; plaintiffs/cross-defendants ordered to pay 95 per...

Orders

  • ['The further amended statement of claim be dismissed.' 'Judgment that the plaintiffs/cross-defendants pay the defendant/cross-claimant $315,000.' 'Order, pursuant to s 100 of the Civil Procedure Act 2005, that the plaintiffs/cross-defendants pay interest to the defendant/cross-claimant on the judgment referred to...