Ko v CKAS Enterprises Pty Ltd (No 2) [2019] NSWSC 209

Ko v CKAS Enterprises Pty Ltd (No 2) [2019] NSWSC 209

Although the Tenant achieved a better outcome than the offer of compromise, the offer was made only one day before the hearing was due to commence and was open only until 10 am on the hearing date, so it was not unreasonable for the Landlord to reject it. The Landlord obtained a declaration that the Tenant failed to exercise the option to renew, but was also estopped from terminating the monthly tenancy unless it first paid equitable compensation, so the cross-claim was reasonably characterised as a draw. The appropriate costs order was that each party otherwise bear its own costs of both the summons and the cross-claim.

Jurisdiction
Australia
Judgment Date
07 March 2019
Procedural Posture
Costs in Equity Proceedings Concerning a Lease Dispute / On the Papers Following Principal Reasons
Outcome
Each party otherwise to bear its own costs of both the summons and the cross-claim; cross-claim otherwise dismissed.
Legal Topics
['costs of Cross Claim' 'offer of Compromise' 'option to Renew Lease' 'estoppel' 'monthly Tenancy' 'equitable Compensation']
['costs' 'equity' 'leases'] ['costs of Cross Claim' 'offer of Compromise' 'option to Renew Lease' 'estoppel' 'monthly Tenancy' 'equitable Compensation']

Case Brief

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Procedural Posture

Costs in Equity Proceedings Concerning a Lease Dispute / On the Papers Following Principal Reasons

Legal Issues

  1. 1 ["Whether the Landlord should pay the Tenant's costs on and from 21 November 2018 on the indemnity basis because of the Tenant's compromise offer." 'Whether there should be no order as to costs of the proceedings or cross-claim.' "Whether the Tenant should pay the Landlord's costs from the filing of the cross-claim." 'Whether the outcome of the cross-claim was reasonably characterised as a draw.']

Ratio Decidendi

Although the Tenant achieved a better outcome than the offer of compromise, the offer was made only one day before the hearing was due to commence and was open only until 10 am on the hearing date, so it was not unreasonable for the Landlord to reject it. The Landlord obtained a declaration that the Tenant failed to exercise the option to renew, but was also estopped from terminating the monthly tenancy unless it first paid equitable compensation, so the cross-claim was reasonably characterised as a draw. The appropriate costs order was that each party otherwise bear its own costs of both the summons and the cross-claim.

Court Disposition

Each party otherwise to bear its own costs of both the summons and the cross-claim; cross-claim otherwise dismissed.

Orders

  • ['Declaration that the plaintiff/cross-defendant did not validly exercise the option to renew the lease (being Registered Lease xx) as assigned to the plaintiff pursuant to Transfer of Lease xx ("the Lease") of the property being Lot 11 in DP xx 31 known as xx xx Street Lidcombe NSW ("the Property") and consequently...