Benjamin Victor Francis Robinson and Aballa Pty Limited v Genevieve Nancy Gollan and Malcolm John Gollan

Judgment - EX TEMPore 1I delivered my judgment in these proceedings on 9 February 2012. I noted that the form of the relief which should ultimately be given might be affected by the Plaintiffs' indication as to whether they pressed for an order for possession of the property which was in issue in these proceedings ("the Old Homestead") at this point, since it was possible that no occasion for equitable compensation would arise if Mr and Mrs Gollan were to remain in possession of that property. I indicated that I would allow an opportunity for short further submissions from each party in that regard and also submissions as to costs. Form of relief 2The Plaintiffs submit that there should be an order for possession in their favour. However, they have offered the sensible suggestion that that order should be stayed for approximately 90 days until the end of May to allow possession to be given in an orderly way. The Defendants submitted, in their written submissions, that the Statement of Claim should be dismissed because they had established a defence arising from cl 6.1 of the Will of the late Mr James Francis Robinson ("the deceased") and under estoppel principles. However, I have found that cl 6.1 of the Will did not impose an obligation on Mr Benjamin Robinson to give the covenant specified in that clause, although the gift of residue to him failed in the absence of that covenant. The findings as to estoppel which I have made also do not prevent the Plaintiffs obtaining an order for possession, now they have confirmed that order is sought, since I have found that the appropriate relief was compensation for the expenditures incurred by Mr and Mrs Gollan rather than a continued right to occupy the Old Homestead. 3Mr and Mrs Gollan also seek orders in accordance with paragraph 2 of the Cross-Claim. The first part of that paragraph is supported by my judgment where the Plaintiffs press a claim for possession. The second part of that paragraph is not, since I did not determine the question of where the residue would pass since all persons whose interests were affected were not party to the proceedings before me. 4Mr and Mrs Gollan also seek an order for equitable compensation in the sum of $194,118. That order is supported by my judgment, as is the imposition of an equitable lien for that amount, but such compensation and such lien should be ordered against only the First and Third Cross-Defendants, Mr Benjamin Robinson and Aballa Pty Ltd. On balance, I consider that it is appropriate that the stay which I will make in respect of the order for possession should also apply to the payment of equitable compensation, with the intent that any compensation would be payable at the time possession is given. 5Mr and Mrs Gollan concede that the balance of the Cross-Claim should be dismissed. Costs 6I had expressed the preliminary view in my judgment that, as the Plaintiffs did not press for the relief initially sought and Mr and Mrs Gollan had had a considerable measure of success in respect of the Cross-Claim, the Plaintiffs should be ordered to pay the costs of the proceedings. The position which I was then addressing has changed in one respect, because the Plaintiffs now press for the order for possession and are entitled to the order in accordance with my judgment. They have, therefore, succeeded in respect of the primary relief which they sought in the Statement of Claim. 7The Plaintiffs' primary position is that there should be no order as to costs, but if such an order should be made, the Plaintiffs should pay two-thirds of the Defendants' costs as agreed or assessed. The Plaintiffs contend that the Defendants failed on a number of claims and, they contend, Mr Benjamin Robinson was obliged to act in the interests of Aballa Pty Ltd and its shareholders and was not obliged to act simply as sought by the deceased. I should note, however, that the ground of unconscionability established against Mr Robinson and Aballa Pty Ltd was not that they had failed to act as the deceased sought, but rather that they had remained silent in the face of the understanding between Mrs Gollan and the deceased while Mr and Mrs Gollan had continued to incur expenditures on the basis of that understanding. On the other hand, Mr and Mrs Gollan contend that the Cross-Defendants should pay their costs of the Cross-Claim, with the implication that each party will pay its own costs attributable to the Statement of Claim. 8The general principle reflected in Uniform Civil Procedure Rules 2005 (NSW) r 42.1 is that the Court is to order that costs follow the event unless it appears to the Court that some other order should be made for the whole or any part of the costs. The Cross-Claim was the primary matter in dispute in these proceedings, with both Counsel fairly conceding at the opening that the outcome of the Cross-Claim was likely to dictate the result of the Statement of Claim, in that an order for possession would be granted if the Cross-Claim failed but might be impacted by Mr and Mrs Gollan's success on the Cross-Claim. 9The authorities indicate that, where a party succeeds on some but not all issues, it will generally be appropriate to order the costs in favour of the successful party unless the matters on which it failed were clearly the dominant issues or were clearly separable from the matters on which it succeeded: see Ritchie's Uniform Civil Procedure NSW [42.1.15], Macquarie International Health Clinic v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 at [9]-[10]. 10In this case, each party has had a measure of success, in that the Plaintiffs have ultimately obtained the order for possession they sought, but Mr and Mrs Gollan have had a substantial measure of success on the Cross-Claim. On balance, I consider that the issues on which Mr and Mrs Gollan failed were ultimately not severable from the primary issues on which they succeeded and were not the predominant issues in the case. The bulk of the case was directed to whether an estoppel was established and much of the cross-examination was directed to that question and the question of the extent of the costs incurred by Mr and Mrs Gollan. The additional representations on which Mr and Mrs Gollan relied, on which they were unsuccessful, did not in my view add substantially to the length of cross-examination or to the extent of submissions. The additional legal claims on which they relied also did not add substantially to the length of the proceedings. 11In these circumstances I consider that the proper course, consistent with the authorities, is that the Cross-Defendants should be ordered to pay the Cross-Claimants' costs of the Cross-Claim, but that any costs attributable to the Statement of Claim not be the subject of any order as to costs. 12I therefore make the following orders: