Boreland v Docker & Ors (No 2) [2007] NSWCA 275

Boreland v Docker & Ors (No 2) [2007] NSWCA 275

Clause 6(iii) of the lease does not entitle the respondents to costs because a judgment was recorded against them; costs at first instance should be apportioned at 80% in favour of the appellant due to the significant time and evidence on the lease variation issue, with each party to bear their own costs on appeal; slip rule correction required for cross-claim dismissal.

Jurisdiction
Australia
Judgment Date
10 October 2007
Procedural Posture
Appeal / Post Judgment / Costs Determination
Outcome
Orders varied; costs apportioned; cross-claim dismissed as specified; appeal outcome as specified.
Legal Topics
['costs' 'lease Variation' 'declaratory Relief' 'cross Claim Dismissal']
['civil Procedure' 'contract Law' 'property Law'] ['costs' 'lease Variation' 'declaratory Relief' 'cross Claim Dismissal']

Case Brief

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Procedural Posture

Appeal / Post Judgment / Costs Determination

Legal Issues

  1. 1 ['Whether clause 6(iii) of the lease entitles the lessors (respondents) to costs where judgment was recorded against them' 'Appropriate orders for costs where appellant partially successful on appeal and trial involved significant evidence and submissions on both major issues' 'Procedural rectification required (slip rule) to properly dismiss cross-claim']

Ratio Decidendi

Clause 6(iii) of the lease does not entitle the respondents to costs because a judgment was recorded against them; costs at first instance should be apportioned at 80% in favour of the appellant due to the significant time and evidence on the lease variation issue, with each party to bear their own costs on appeal; slip rule correction required for cross-claim dismissal.

Court Disposition

Orders varied; costs apportioned; cross-claim dismissed as specified; appeal outcome as specified.

Orders

  • ["Correct the orders made by the Court on 24 April 2007 pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), so as to add as Order 2A: 'The respondents' cross-claim be otherwise dismissed'" "Order that the respondents pay 80 per cent of the appellant's costs at first instance" 'Order that the...