Papas v Jabba Constructions Pty Ltd [2010] NSWSC 361

Papas v Jabba Constructions Pty Ltd [2010] NSWSC 361

The plaintiffs were not entitled to indemnity costs because the defendant acted reasonably in not accepting offers that could not resolve the proceedings without Red Rooster's agreement or an indemnity. The Court could not be satisfied without a full hearing that the plaintiffs would have succeeded, and the real dispute was between the plaintiffs and Red Rooster; had the plaintiffs succeeded after a contested hearing, the appropriate costs order would have been against Red Rooster, but that liability had been compromised. The defendant acted reasonably in filing the cross-summons to bring the real issues before the Court, then took a non-active role and submitted to the Court's orders, so...

Jurisdiction
Australia
Judgment Date
19 April 2010
Procedural Posture
Costs in Proceedings for Specific Performance of a Contract for Sale of Land Subject to a Registered Lease and Right of First Refusal / After Consent Declarations and Orders Had Been Made and After Settlement Between the Plaintiffs and Red Rooster; Outstanding Questions Concerned Costs
Outcome
Costs orders made in favour of the defendant/cross-claimant against Red Rooster; no order as to costs between the plaintiffs and the defendant, and no order as to costs between the plaintiffs and Red Rooster.
Legal Topics
['specific Performance' 'contract for Sale of Land' 'registered Lease' 'right of First Refusal' 'joinder' 'offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'cross Summons' 'submitting Defendant']
['civil Procedure' 'costs' 'equity' 'real Property'] ['specific Performance' 'contract for Sale of Land' 'registered Lease' 'right of First Refusal' 'joinder' 'offer of Compromise' 'indemnity Costs' 'ordinary Costs' 'cross Summons' 'submitting Defendant']

Case Brief

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Procedural Posture

Costs in Proceedings for Specific Performance of a Contract for Sale of Land Subject to a Registered Lease and Right of First Refusal / After Consent Declarations and Orders Had Been Made and After Settlement Between the Plaintiffs and Red Rooster; Outstanding Questions Concerned Costs

Legal Issues

  1. 1 ['Whether the plaintiffs were entitled to indemnity costs against the defendant because they had obtained the relief sought and had made offers of compromise.' "Whether the defendant should pay the plaintiffs' costs on the ordinary basis when the proceeding resolved without a full hearing on the merits." "Whether Red Rooster should pay the defendant/cross-claimant's costs of the cross-summons and related proceedings." 'Whether Red Rooster was a necessary party for determination of the dispute concerning the exercise of the right of first refusal.']

Ratio Decidendi

The plaintiffs were not entitled to indemnity costs because the defendant acted reasonably in not accepting offers that could not resolve the proceedings without Red Rooster's agreement or an indemnity. The Court could not be satisfied without a full hearing that the plaintiffs would have succeeded, and the real dispute was between the plaintiffs and Red Rooster; had the plaintiffs succeeded after a contested hearing, the appropriate costs order would have been against Red Rooster, but that liability had been compromised. The defendant acted reasonably in filing the cross-summons to bring the real issues before the Court, then took a non-active role and submitted to the Court's orders, so...

Court Disposition

Costs orders made in favour of the defendant/cross-claimant against Red Rooster; no order as to costs between the plaintiffs and the defendant, and no order as to costs between the plaintiffs and Red Rooster.

Orders

  • ['Declaration made by consent that Red Rooster had not validly exercised its option under clause 9.4 of the lease.' "Order made by consent that the plaintiffs' contract with the defendant be specifically performed." 'No order as to costs between the plaintiffs and Red Rooster.' "Order that the third cross-defendant...