Commissioner for Fair Trading v Tschannen & Ors [2004] NSWSC 352

Commissioner for Fair Trading v Tschannen & Ors [2004] NSWSC 352

Because the plaintiff succeeded only in part and failed on a substantial part of its claim, especially the ultimate claim for appointment of a manager, but nevertheless obtained declarations of breach, the defendants should pay two-thirds of the plaintiff's costs subject to the plaintiff paying the defendants' costs of the plaintiff's interlocutory application; mediation costs and strike-out application costs should be costs in the cause, and the defendants' pre-trial undertakings did not warrant a different costs result.

Jurisdiction
Australia
Judgment Date
30 April 2004
Procedural Posture
Common Law Division Proceeding Concerning Alleged Breaches of the Residential Parks Act 1998 / Judgment on Costs and Form of Orders After Principal Judgment
Outcome
Costs and form of orders determined; orders made pursuant to short minutes, with specified costs orders and liberty to apply.
Legal Topics
['costs After Partial Success' 'mediation Costs' 'interlocutory Costs' 'application to Strike Out Summons' 'declarations of Breach of Residential Parks Act 1998']
['costs' 'residential Parks'] ['costs After Partial Success' 'mediation Costs' 'interlocutory Costs' 'application to Strike Out Summons' 'declarations of Breach of Residential Parks Act 1998']

Case Brief

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Procedural Posture

Common Law Division Proceeding Concerning Alleged Breaches of the Residential Parks Act 1998 / Judgment on Costs and Form of Orders After Principal Judgment

Legal Issues

  1. 1 ['Whether the plaintiff or defendants should receive costs of the proceedings after the plaintiff succeeded only in part.' "Whether the defendants' pre-trial undertakings and offers were more favourable to the plaintiff than the orders obtained." 'Whether costs of mediation should be costs in the cause or otherwise ordered against the plaintiff.' "Whether the plaintiff should pay the defendants' costs of the plaintiff's application for interlocutory orders." "Whether the costs of the defendants' application to strike out the summons should be costs in the cause." "Whether the plaintiff's public role justified a more liberal approach to its claim for costs."]

Ratio Decidendi

Because the plaintiff succeeded only in part and failed on a substantial part of its claim, especially the ultimate claim for appointment of a manager, but nevertheless obtained declarations of breach, the defendants should pay two-thirds of the plaintiff's costs subject to the plaintiff paying the defendants' costs of the plaintiff's interlocutory application; mediation costs and strike-out application costs should be costs in the cause, and the defendants' pre-trial undertakings did not warrant a different costs result.

Court Disposition

Costs and form of orders determined; orders made pursuant to short minutes, with specified costs orders and liberty to apply.

Orders

  • ['Orders pursuant to short minutes of order initialled by me;' 'Costs of mediation, costs in the cause;' "Plaintiff to pay defendants' costs of plaintiff's application for interlocutory orders;" "Costs of defendants' application to strike out the summons, costs in the cause;" "Subject to (3) above, defendants to pay...