Tomara Holdings Pty Ltd v Pongrass

HIS HONOUR : I had rather anticipated that there might be lengthy arguments about costs in these proceedings. However, counsel have this morning put to me submissions which are admirably succinct and I think to the real point concerning the costs in these proceedings.

The situation is this. The plaintiff was totally successful on the defendants' cross claim, which was probably the main point of contention in the proceedings, that is, a claim for total extinguishment of the right of way, which was maintained until during the course of the trial, and an alternative claim for a partial extinguishment or modification, which was maintained to the end.

The plaintiff has been only partially successful on its claim for injunctive relief and that in a regard which did not play a great part at the trial. It lost on its larger claim for injunctive relief, for the removal of the wall between the two properties. It is correct to say, as Mr Enright for the plaintiff has said, that the evidence concerning this matter had some overlap with the evidence and contest concerning the extinguishment or modification of the right of way. However, a good deal of time was taken up with the issue of the wall. This was the largest subject matter of the plaintiff's claim and on that subject matter the plaintiff failed.

In the end, the contest was between two possible outcomes. The first was that the defendants should pay the whole of the plaintiff's costs, on the basis that it had been substantially successful, and there was no discrete issue in relation to which costs could be assessed in the defendants’ favour. The alternative outcome was that the defendants, in light of what I have said about the issue concerning the wall, ought be ordered to pay half the plaintiff's costs of the proceedings. I prefer the latter view and conclude that the dictates of justice will be best served if I order that the defendants pay one half of the plaintiff's costs of the proceedings and I propose so to order.

I order that the defendants pay one half of the plaintiff's costs of the proceedings. The exhibits may be returned. There will be orders in accordance with the short minutes initialled by me and placed with the papers. I note that the form of orders 1 to 4 is consented to by the parties.