Universal 1919 Pty Limited v Barraket Stanton Lawyers Pty Ltd (No 2)

[2015] NSWSC 541

Supreme Court

New South Wales

Medium Neutral Citation:	Universal 1919 Pty Limited v Barraket Stanton Lawyers Pty Ltd (No 2) [2015] NSWSC 541
Hearing dates:	7 May 2015
Date of orders:	07 May 2015
Decision date:	07 May 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Defendants to pay plaintiff's costs of the proceedings.
Catchwords:	COSTS – general rule that costs follow the event
Legislation Cited:	Legal Profession Act 2004 (NSW), s 350
Cases Cited:	Universal 1919 Pty Limited v Barraket Stanton Lawyers Pty Ltd [2015] NSWSC 540
Category:	Costs
Parties:	Universal 1919 Pty Limited (Plaintiff) Barraket Stanton Lawyers Pty Ltd (First Defendant) 122 Pitt Street Pty Ltd (Second Defendant)
Representation:	Counsel: R Goodridge (Plaintiff) J Sharpe (Defendants)   Solicitors: George Xylas Solicitor (Plaintiff) Barraket Stanton Lawyers (Defendants)
File Number(s):	2014/343894
Publication restriction:	None

Judgment – ex tempore

1. HER HONOUR: I have this morning determined an application brought by a tenant who is obliged as a third party payer to pay its landlord's legal costs in connection with an admitted breach of the lease. For the reasons I have given orally this morning, the tenant has been successful in the proceedings in this Court, in particular in contending that it is entitled to have the landlord’s costs assessed: Universal 1919 Pty Limited v Barraket Stanton Lawyers Pty Ltd [2015] NSWSC 540.

2. Ordinarily, costs follow the event. Mr Sharpe, who appears for the landlord and the solicitor, has argued that the “usual order” in an application under s 350 of the Legal Profession Act 2004 (NSW) (presumably a reference to subs (5) of that section) is that the applicant pay the costs, even if successful. This proceeding, however, has not been determined as such an application. Rather, I have held that the application did not require a determination under s 350(5), since it was not brought out of time. The reason I determined it was not brought out of time was the landlord's or solicitor's failure to provide information in response to a proper written request.

3. The landlord and solicitor submitted that the only reason for the present application was the assessor's determination to the contrary. I would respectfully see the matter differently. In my view, the one event that could have obviated the unfortunate and expensive dispute that has transpired between these parties is that the landlord and solicitor could have acceded to any one of the many reasonable requests for information made by the tenant.

4. One further submission relied upon in resisting an order for costs was that if, in due course, it transpires that the figure claimed by the landlord is right, it would be unjust if the landlord and solicitor had to bear the costs of the present application. Again, I would reiterate that the step which would have obviated the costs of this application is the provision of the information sought from the outset.

5. In my view, the appropriate order is that the defendants pay the plaintiff's costs of the proceedings.

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