Doman v Young Scholars @Glebe Pty Ltd (Costs)

[2024] NSWSC 1356

Supreme Court

New South Wales

Medium Neutral Citation:	Doman v Young Scholars @Glebe Pty Ltd (Costs) [2024] NSWSC 1356
Hearing dates:	On the Papers
Date of orders:	28 October 2024
Decision date:	28 October 2024
Jurisdiction:	Equity - Commercial List
Before:	Hammerschlag CJ in EQ
Decision:	The defendants are to pay 80% of the plaintiffs’ costs on the ordinary basis excluding the plaintiffs’ costs attributable to the provision of the explanation for failure to discover adequately and their costs of, and incidental to, the submissions on costs, to the intent that the parties shall bear their own costs of these attendances
Catchwords:	COSTS – Where the plaintiffs were successful but failed to establish that a rent review had occurred and a number of their claimed heads of damage – Where the circumstances justify a reduction in the plaintiffs’ entitlement to costs – HELD: the defendants are to pay 80% of the plaintiffs’ costs on the ordinary basis (excluding the plaintiffs’ costs attributable to the provision of the explanation for their failure to discover adequately and their costs of, and incidental to, the submissions on costs)
Category:	Costs
Parties:	Thomas Alastair Doman (First Plaintiff/First Cross-Defendant) Elspeth Mary Doman (Second Plaintiff/Second Cross-Defendant) T A Doman & Co Pty Limited (Third Plaintiff/Third Cross-Defendant) Vimreach Pty Ltd (Fourth Plaintiff/Fourth Cross-Defendant) Margaret Campbell Doman (Fifth Plaintiff/Fifth Cross-Defendant) Young Scholars @Glebe Pty Ltd (First Defendant/Cross-Claimant) Joan Elizabeth Stone (Second Defendant) Cubbyhouse Childcare NSW Pty Ltd (Third Defendant)
Representation:	Counsel: AR Langshaw (Plaintiffs/Cross-Defendants) DA Smallbone (Defendants/Cross-Claimant) Solicitors: Horton Rhodes (Plaintiffs/Cross-Defendants) RJI Legal (Defendants/Cross-Claimant)
File Number(s):	2022/372137
Publication restriction:	Nil

JUDGMENT

1. HIS HONOUR: On 10 October 2024, I handed down the principal judgment in this case: see Doman v Young Scholars @Glebe Pty Ltd [2024] NSWSC 1266.

2. The plaintiffs succeeded, but not on all of their claims. Both parties have provided written submissions on costs. Neither party sought an oral hearing on costs.

3. Costs are within the discretion of the Court and the starting point is that they follow the event, unless the Court considers that some other order is appropriate. Generally, the Court does not determine costs on the basis of separating out issues. But there are cases where this is appropriate, and this case is one of them.

4. The plaintiffs’ claim for land tax was abandoned. Their claims for insurance premiums and solicitors’ costs failed, and their claim for reletting costs succeeded to a limited extent. Added to this, the plaintiffs, for reasons which were not adequately explained, failed to comply with orders for discovery. The explanation seems to be that the plaintiffs asked their letting agent for the insurance policies, did not get them and left the matter there, in circumstances where they must have known that the policies existed. They appeared to have no trouble in producing them when I required it. The plaintiffs also failed to establish that a rent review occurred, which will have a not insignificant effect on the quantum of their claim. There should in the circumstances be a reduction in the plaintiffs’ entitlement to costs to reflect their failure on the various claims and issues concerned and also to ensure that the defendants are not mulcted in costs incurred by the plaintiffs in making inadequate discovery.

5. Taking a broad brush approach and applying the Court’s experience, I consider that the plaintiffs should have 80% of their costs on the ordinary basis (but excluding costs attributable to the provision of the explanation for failure adequately to discover and the costs of, and incidental to, the submissions on costs, to the intent that the parties shall bear their own costs of these attendances).

6. The defendants are to pay 80% of the plaintiffs’ costs on the ordinary basis excluding the plaintiffs’ costs attributable to the provision of the explanation for failure adequately to discover and their costs of, and incidental to, the submissions on costs, to the intent that the parties shall bear their own costs of these attendances.

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