Sanders v Constantine [2006] NSWSC 534

Sanders v Constantine [2006] NSWSC 534

Because the substantive retail lease dispute had been resolved at mediation, the proceedings were not determined on the merits and there was no capitulation or clear basis to conclude that either party almost certainly would have succeeded or acted unreasonably in commencing or defending the proceedings. The Calderbank offer, which was open only until the following morning, and the defendant's subsequent pursuit of costs including substantial affidavit evidence did not justify departure from the usual principle. The appropriate order was no order as to costs, with each party bearing his or her own costs, and dismissal of the summons.

Jurisdiction
Australia
Judgment Date
25 May 2006
Procedural Posture
Equity Division Proceedings Concerning an Ex Parte Injunction Restraining the Defendant From Taking or Keeping Possession of Retail Cafe Premises / Ex Tempore Judgment on Costs and Dismissal of the Summons After Mediation Resolved the Substantive Dispute
Outcome
Summons dismissed; no order as to costs, with each party to bear his or her own costs.
Legal Topics
['costs Where Proceedings Are Resolved Without Determination on the Merits' 'calderbank Offer' 'indemnity Costs' 'retail Lease Mediation' 'overriding Purpose of Civil Procedure']
['civil Procedure' 'costs' 'retail Leases'] ['costs Where Proceedings Are Resolved Without Determination on the Merits' 'calderbank Offer' 'indemnity Costs' 'retail Lease Mediation' 'overriding Purpose of Civil Procedure']

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Procedural Posture

Equity Division Proceedings Concerning an Ex Parte Injunction Restraining the Defendant From Taking or Keeping Possession of Retail Cafe Premises / Ex Tempore Judgment on Costs and Dismissal of the Summons After Mediation Resolved the Substantive Dispute

Legal Issues

  1. 1 ['Whether any order for costs should be made where the dispute had been resolved at mediation and the proceedings were not determined on the merits.' "Whether the defendant's Calderbank letter justified a departure from the usual position that there be no order as to costs." 'Whether the defendant should receive costs, including indemnity costs, after the plaintiff did not accept an offer open for less than twenty-four hours.' 'Whether further evidence or an adjournment should be allowed to litigate the merits solely for the purpose of costs.']

Ratio Decidendi

Because the substantive retail lease dispute had been resolved at mediation, the proceedings were not determined on the merits and there was no capitulation or clear basis to conclude that either party almost certainly would have succeeded or acted unreasonably in commencing or defending the proceedings. The Calderbank offer, which was open only until the following morning, and the defendant's subsequent pursuit of costs including substantial affidavit evidence did not justify departure from the usual principle. The appropriate order was no order as to costs, with each party bearing his or her own costs, and dismissal of the summons.

Court Disposition

Summons dismissed; no order as to costs, with each party to bear his or her own costs.

Orders

  • ['There be no order as to the costs of the proceedings with the intent that each party bear his or her own costs.' 'Otherwise the summons be dismissed.']