Australia, June 9 -- New South Wales Land and Environment Court issued text of the following judgement:

1. This judgment deals with the costs of proceedings brought by Ms Quine seeking relief in respect of the affairs of Gerringong Storage Pty Ltd ("GSPL") as the trustee of the Gerringong Storage Unit Trust ("GSUT"). I delivered judgment in those proceedings on 2 April 2025 (Re Gerringong Storage Pty Ltd [2025] NSWSC 302) ("Primary Judgment"). I directed the parties to bring in agreed short minutes of order to give effect to the judgment, including as to costs, or their respective draft orders and submissions if they did not reach agreement. The parties reached agreement as to several orders, and the Defendants propose additional orders that the Plaintiff's Second Further Amended Statement of Claim ("Statement of Claim") be otherwise dismissed and that their Statement of Cross-Claim ("Cross-Claim") be dismissed, which are appropriate to give effect to the conclusions that I reached in the Primary Judgment. The parties did not reach agreement as to the question of costs. That was perhaps not surprising, given the history of the proceedings, but that approach exposed the parties to the risk of incurring significant costs in an assessment which they would have not incurred had they adopted a more constructive approach.

The applicable principles

2. It is, of course, uncontroversial that s 98 of the Civil Procedure Act 2005 (NSW) confers on the Court a wide discretion with respect to costs, and the Court has discretion to determine by whom, to whom and to what extent costs are to be paid, and costs will ordinarily follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs, in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). The onus is on the losing party to establish the basis for a departure from the usual costs rule in UCPR r 42.1: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]. Mr Bedrossian, with whom Mr Munro appears for the several Defendants, accepts that the principle that costs should follow the event is the "guiding principle" with respect to costs: Northern Territory v Sangare [2019] 265 CLR 164; [2019] HCA 25 at [24]-[25]. Obviously, that principle requires that the "event" be identified in the relevant circumstances.

3. Mr Bedrossian also refers to Golding v Vella (No 2) [2001] NSWSC 731, where Barrett J (as his Honour then was) observed at [8] that "... [it is] perhaps unwise to be too technical about measuring success on the various issues pleaded: 'one does not look at issues as if they were pleaders' issues, but approaches the matter with a broad brush.': Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22 per Young J." Mr Bedrossian also recognises that, in James & Ors v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [33], the Court of Appeal observed that, in cases in which a party has received only partial success:

"1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.

2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.

3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law."

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196b286f9b28ba85d5c99a88)

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