Goldana Investments Pty Ltd v Amberdown Pty Ltd (No. 2)

PRIESTLEY JA: I agree with Fitzgerald JA.

BEAZLEY JA: I agree with Fitzgerald JA.

FITZGERALD JA: Judgment in this appeal was delivered on 16 March 2000, when provision was made for further submissions in relation to the costs of the trial.

The appeal arose out of a proceeding in the Equity Division in which the respondent sued the appellant, which cross-claimed. Each of the claim and cross-claim related to a different clause in a lease between the parties. The respondent - lessee alleged that the appellant - lessor was in breach of clause 22 of the lease, and the appellant alleged that the respondent was in breach of clause 6 of the lease.

The Equity Division effectively held that the respondent was not in breach of clause 6 of the lease but that the appellant was in breach of clause 22. This clause allowed the appeal in part, and held that the appellant was not in breach of clause 22. However, the appellant’s rejection that the respondent is in breach of clause 6 was rejected.

There is nothing in the circumstances which disentitles the appellant to the ordinary order that it should have its costs of its partially successful, and necessary, appeal.

However, the effect of this Court’s orders, broadly speaking, was that both claim and counter claim failed. I do not accept the appellant’s submission that the part of the dispute on which it succeeded was more important than the part on which it failed. The dispute in relation to each clause was as important as the dispute in relation to the other.

In the circumstances, I would make no order for the costs of the trial.