Yeshiva Synagogue Incorporated 9893834 v Karimbla Properties (No 10) Pty Ltd (No 2) [2017] NSWSC 1504

Yeshiva Synagogue Incorporated 9893834 v Karimbla Properties (No 10) Pty Ltd (No 2) [2017] NSWSC 1504

The plaintiffs did not act unreasonably in failing to resolve the proceedings on 28 April 2017 because the defendant's conditional position only became clear late that day and the proceedings had been on foot for just over a week. The defendant's undertakings on the termination notices were not a capitulation and did not justify indemnity costs. The two hearing issues were distinct and of approximately equal significance: the defendant was wholly successful on the right of occupation issue, while the termination issue was resolved by undertakings without determination on the merits. Fairness therefore required the plaintiffs and the third cross-claimant on the second cross-claim to pay...

Jurisdiction
Australia
Judgment Date
03 November 2017
Procedural Posture
Costs Determination in Equity Proceedings / On the Papers After Judgment Delivered on 10 October 2017
Outcome
Plaintiffs and the third cross-claimant on the second cross-claim ordered to pay 50% of the defendant's costs of the proceedings on the ordinary basis; proceedings otherwise dismissed subject to declarations and undertakings.
Legal Topics
['costs Following Event' 'open Offer to Settle' 'indemnity Costs' 'apportionment of Costs by Issue' 'termination Notices' 'rights of Possession or Occupation Under Deeds']
['costs' 'civil Procedure' 'equity' 'leases' 'contract Construction'] ['costs Following Event' 'open Offer to Settle' 'indemnity Costs' 'apportionment of Costs by Issue' 'termination Notices' 'rights of Possession or Occupation Under Deeds']

Case Brief

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Procedural Posture

Costs Determination in Equity Proceedings / On the Papers After Judgment Delivered on 10 October 2017

Legal Issues

  1. 1 ["Whether the plaintiffs acted unreasonably by failing to accept the defendant's position or offer on 28 April 2017 so as to justify an order that they pay the defendant's costs after that date." "Whether the defendant should pay the plaintiffs' costs, including on an indemnity basis, because it undertook not to rely on termination notices at the commencement of the hearing." "How costs should be apportioned where the right of occupation issue was determined in the defendant's favour and the lease termination issue was resolved without determination on the merits."]

Ratio Decidendi

The plaintiffs did not act unreasonably in failing to resolve the proceedings on 28 April 2017 because the defendant's conditional position only became clear late that day and the proceedings had been on foot for just over a week. The defendant's undertakings on the termination notices were not a capitulation and did not justify indemnity costs. The two hearing issues were distinct and of approximately equal significance: the defendant was wholly successful on the right of occupation issue, while the termination issue was resolved by undertakings without determination on the merits. Fairness therefore required the plaintiffs and the third cross-claimant on the second cross-claim to pay...

Court Disposition

Plaintiffs and the third cross-claimant on the second cross-claim ordered to pay 50% of the defendant's costs of the proceedings on the ordinary basis; proceedings otherwise dismissed subject to declarations and undertakings.

Orders

  • ['The defendant undertook not to rely on the notices of termination dated 15 March 2017 to terminate the identified leases for premises at 36 Flood Street, Bondi and 36A Flood Street, Bondi.' 'The defendant undertook not to rely on the notices of termination dated 4 September 2017 to terminate the identified leases...