Mao v Yehuaxin Enterprise Pty Limited & Ors [2009] NSWSC 1270

Mao v Yehuaxin Enterprise Pty Limited & Ors [2009] NSWSC 1270

Leave to discontinue was granted because it was neither necessary nor fair to require the plaintiff to proceed to judgment after the defendants' failure to renew the lease rendered the proceedings commercially futile. Although the plaintiff had not achieved practical success in the sense required by Garwolin Nominees, the first, second and third defendants acted unreasonably by failing to exercise the lease renewal option by 30 December 2008 and by failing to inform the plaintiff or the Court, thereby causing the plaintiff to incur wasted costs after that date.

Jurisdiction
Australia
Judgment Date
25 November 2009
Procedural Posture
Equity Proceedings Concerning an Alleged Agreement for Sale of a Supermarket Business and Related Relief / Notice of Motion for Leave to Discontinue Proceedings Under UCPR R 12.1(1)(b) and for Costs
Outcome
Leave to discontinue granted; costs ordered against the first, second and third defendants for costs incurred after 30 December 2008 including the motion costs.
Legal Topics
['equitable Remedies' 'alleged Agreement for Sale of Business' 'discontinuance of Proceedings' 'costs on Discontinuance' 'unreasonable Conduct in Litigation' 'lease Option Renewal']
['equity' 'civil Procedure' 'costs'] ['equitable Remedies' 'alleged Agreement for Sale of Business' 'discontinuance of Proceedings' 'costs on Discontinuance' 'unreasonable Conduct in Litigation' 'lease Option Renewal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Proceedings Concerning an Alleged Agreement for Sale of a Supermarket Business and Related Relief / Notice of Motion for Leave to Discontinue Proceedings Under UCPR R 12.1(1)(b) and for Costs

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to discontinue the proceedings under UCPR r 12.1(1)(b).' "Whether the first, second and third defendants should pay the plaintiff's costs notwithstanding discontinuance." 'Whether the plaintiff had achieved practical success in the litigation.' "Whether the defendants' conduct in failing to exercise or disclose non-exercise of the lease renewal option was unreasonable and caused wasted costs."]

Ratio Decidendi

Leave to discontinue was granted because it was neither necessary nor fair to require the plaintiff to proceed to judgment after the defendants' failure to renew the lease rendered the proceedings commercially futile. Although the plaintiff had not achieved practical success in the sense required by Garwolin Nominees, the first, second and third defendants acted unreasonably by failing to exercise the lease renewal option by 30 December 2008 and by failing to inform the plaintiff or the Court, thereby causing the plaintiff to incur wasted costs after that date.

Court Disposition

Leave to discontinue granted; costs ordered against the first, second and third defendants for costs incurred after 30 December 2008 including the motion costs.

Orders

  • ['Grant leave to the plaintiff to discontinue these proceedings against all the defendants by filing a notice of discontinuance in conformity with UCPR r 12.1.' "Order that the first, second and third defendants pay the plaintiff's costs of these proceedings incurred after 30 December 2008 including the costs of the...