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[2000] NSWSC 961
plaintiff. The Court ordered that the defendant pay the plaintiff's costs of the proceedings, other than the costs of the application referred to in order 7 of the orders made by Santow J on 6 April 2000;...
Hamilton J ordered that the defendant pay the plaintiff's ordinary costs of the proceedings. The plaintiff had succeeded on two of three issues; the Court found the defendant's success was not on a discrete issue and that there was no conduct or other factor sufficient to depart from the ordinary rule that costs follow the event. A prior payment of $1,500 ordered by Santow J remains unaffected. No indemnity costs were awarded.
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1,853 words · generated 16/08/2026
This judgment is a short costs decision following the substantive hearing in Ell v Cisera. The parties were in dispute over a commercial lease. At the substantive hearing the Court (Hamilton J) identified three contested issues (set out originally at [19] of the substantive judgment, referred to here at [1]). By the time of the costs hearing:
No linked legislation citations have been extracted yet.
The decision rests on the application of well-established costs principles:
Costs generally follow the event. Hamilton J stated the general principle: "a plaintiff who is successful, albeit only partly successful, in proceedings ought have the costs of the proceedings" and that departure from this rule requires other factors or circumstances (see [3]).
Discrete-issues exception. The Court considered whether the defendant's success on one issue made it unjust for the plaintiff to recover all costs. The judge observed that departure is justified where there are discrete issues and separate bodies of evidence so that justice requires a different allocation (see [3]). However, Hamilton J found that the issue on which the defendant succeeded was not a 'discrete' issue because the same subject matter and evidence (particularly facts about payment of rent and related matters) were necessarily traversed on the issues the plaintiff won (see [5]). Therefore the discrete-issue exception did not apply.
Conduct and 'provocation'. The defendant argued the plaintiff's conduct provoked the defendant's conduct (including re-entry) and that the plaintiff's later equivocal conduct in completing reinstatement reinforced that point, warranting departure. Hamilton J acknowledged prima facie concerns about the 55-day delay and equivocation but reasoned those matters had not been fully agitated and, more importantly, that unsatisfactory conduct after judgment did not affect the costs of proceedings decided up to judgment (see [2], [6], [7]). He further noted prior observations in the substantive judgment criticising aspects of the plaintiff's conduct, but considered those did not go to the merits of the termination or relevancy issues, and were insufficient to displace the ordinary costs rule (see [7]).
Indemnity costs. The judge found no basis for indemnity costs. He emphasised that the contested issues were not self-evident and the defendant's arguments were arguable, hence not the kind of conduct that takes the matter out of the ordinary course to justify indemnity costs (see [10]).
Prior costs order remains. Santow J's earlier order for $1,500 had been made and paid; Hamilton J refused to order repayment, reasoning that the payment formed part of the consideration for the earlier agreement and the defendant's conduct was not contumelious, so the earlier order should not be disturbed (see [9]).
Hence the operative orders: defendant to pay plaintiff's costs of the proceedings except costs of the application covered by Santow J's order; liberty to apply on three days' notice (see [11]).
Before this decision, established costs law set out that costs ordinarily follow the event, with recognised exceptions, notably where there are discrete issues or where conduct justifies departure. Hamilton J reviewed those principles and the authorities in [3], expressly citing Supreme Court Rules Pt 52A r 11 and authorities such as Hughes v Western Australian Cricket Association and Dodds Family Investments v Lane Industries as support for the propositions he applied (see [3]). He also referred to several of his prior decisions where similar analyses were undertaken (Domino Hire and JDM Investments) and to other reported and unreported authorities (see [3]).
After this decision, the principle remains the same. What this judgment adds is an application emphasising that:
Not every partial victory should displace the ordinary rule; the 'discrete issue' exception requires a genuine separability of issues and evidence. If the parties litigate overlapping facts and the same evidence is relevant across issues, the Court is unlikely to subdivide costs merely because different legal conclusions were reached on different strands (see [5], [8]).
Post-judgment conduct (for example slow completion of remedial works after re-entry under court orders) is unlikely to affect costs of the proceedings decided up to the date of judgment unless such conduct was fully agitated and shown to warrant a different outcome (see [2], [7]).
A prior costs order properly made and paid will not be reopened merely because a party later succeeds generally on the proceedings (see [9]).
In short, the judgment reinforces orthodox costs principles and provides an example of cautious application of the discrete-issues and conduct exceptions.
Paragraph [3]: "The principles relating to costs... costs ought follow the event...", Plain English: Normally the winner gets costs; exceptions need a clear reason.
Paragraph [4]: "the plaintiff must be regarded as having succeeded on two out of the three issues.", Plain English: Overall, the plaintiff won most of what was argued.
Paragraph [5]: "the issue on which the defendant succeeded I do not regard as a discrete issue...", Plain English: The defendant's single success was not separate enough from the rest of the fight to change the usual costs rule.
Paragraph [7]: "recent conduct... not in any event appropriate to be taken into account in determining the incidence of the costs... up to the date at which judgment was delivered...", Plain English: What happened after the Court decided the main issues should not affect who pays costs for the trial.
Paragraph [9]: "That order, having been made and carried out, cannot now be revoked...", Plain English: The earlier payment of $1,500 stands; the Court will not make the defendant give it back.
Paragraph [10]: "there is no factor which takes the matter out of the ordinary course so as to require... indemnity...", Plain English: There is nothing so bad or unreasonable that the usual costs rules should be replaced by a punitive indemnity order.
Paragraph [11]: operative order, Plain English: Defendant pays plaintiff's costs, except the part covered by the earlier Santow J order; either party can apply on three days' notice about costs.
The reasoning in this judgment is most directly triggered in cost disputes displaying the following features:
Multiple discrete legal questions or issues tried together where one party wins some and loses others; the Court must decide if any success is truly 'discrete' and separable so as to justify splitting costs (see [3]–[5]).
Overlapping evidence across issues. Where the same facts and documents are used to decide multiple questions, the judge is unlikely to treat a single losing issue as a separate wrong justifying a different costs allocation (see [5]).
Attempts to rely on later (post-judgment) conduct to re-allocate costs. This judgment shows caution in using events after the hearing to change costs for the trial period (see [2], [7]).
Prior interim costs orders which have been carried out, the Court will not lightly unwind payments properly made in the course of negotiated or interim orders (see [9]).
Practitioners facing similar facts should expect a court to examine whether the contested issue on which a party succeeded was really discrete and whether the losing party’s conduct before or during the trial makes departure from the ordinary rule necessary.
This judgment itself cites a number of earlier authorities on costs and the discrete-issues exception and relates to the judge's prior decisions (see [3]). The decision records and applies established lines of authority rather than announcing new law. The judgment does not in itself survey later treatment by other courts, it is a single-instance decision applying conventional principles. The relevant authorities cited by Hamilton J were used in support of the standard approach that costs usually follow the event and that departures require clear justification (see [3]).
If one needs to know how later courts have treated Hamilton J's approach in Ell v Cisera, that would require searching subsequent reported decisions citing [2000] NSWSC 961; that step is outside this judgment's text and not summarised here.
Hamilton J's reasons are clear but leave some practical uncertainties for litigation strategy and costs forecasting:
Exact boundary of 'discrete issue'. While the judge emphasised overlapping evidence will defeat a discrete-issues argument (see [5]), the precise degree of factual or evidentiary separation required to render an issue 'discrete' is fact-specific and will continue to depend on judicial assessment.
Weight to be given to post-judgment conduct. The judgment indicates post-judgment behaviour is not relevant to costs of the trial period unless fully agitated and shown to be decisive (see [2], [7]). It remains unsettled how egregious or what kind of post-judgment conduct could justify reopening costs allocation for the trial period.
Threshold for indemnity costs. The judge refused indemnity costs where arguments were non-frivolous. The particular factual thresholds that would convert a non-frivolous but ultimately losing position into grounds for indemnity costs remain dependent on the circumstances and later appellate guidance.
Interaction with prior compromise payments and interim orders. The decision affirms that payments made under earlier orders are not readily disturbed (see [9]); however, the extent to which courts should adjust final costs to achieve overall fairness where interim payments were made remains an area for attention.
These are practical areas where further authority or appellate consideration would clarify boundaries.
Disclaimer: This is a factual and textual analysis of the Court's judgment in Ell v Cisera [2000] NSWSC 961. It is legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use any of this analysis (or any draft arising from it), get a qualified Australian lawyer to check it.
CITATION : Ell v Cisera [2000] NSWSC 961 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2016/00 HEARING DATE(S) : 5 October 2000 JUDGMENT DATE : 5 October 2000
PARTIES : Richard Ell t/as GNP Printing (P) Dino Cisera (D) JUDGMENT OF : Hamilton J
COUNSEL : H Thurairajah, Sol (P) D L Oliveri, Sol (D) SOLICITORS : Thurai Rajah Lawyers (P) Oliveri Solicitors (D) CATCHWORDS : PROCEDURE [573] - Costs - Departing from the general rule - Powers of court - Relevant principle - Whether claims distinct. LEGISLATION CITED : Supreme Court Rules 1970 Pt 52A r 11 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2000] NSWSC 313 Ell v Cisera [2000] NSWSC 768 CASES CITED : Hughes v Western Australian Cricket Association (1986) ATPR 40-748 JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432 Ronnoc Finance Ltd v Spectrum Network Systems Ltd 19 November 1997 NSWSC unreported Waters v P C Henderson (Australia) Pty Ltd 6 July 1994 NSWCA unreported DECISION : General rule should not be departed from.
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
2016/00 RICHARD ELL t/as GNP PRINTING v DINO CISERA
1 The question of the costs of these proceedings has been argued before me this morning. Each of the parties applies for an order for costs of the proceedings against the other on the indemnity basis. The contested questions which I determined in the proceedings were set out in [19] of the substantive judgment which I delivered on 3 August 2000: Ell v Cisera [2000] NSWSC 768 ("my judgment"). There were really three issues in the proceedings. The first was encompassed in Question (1); the second in Questions (2) and (3); and the third in Question (4). On the issue encompassed in Questions (2) and (3), in essence, whether the remedial steps taken by the plaintiff in respect of the factory floor were "reasonable steps to reinstate the premises", the plaintiff succeeded and the defendant failed. The plaintiff was allowed, under the orders that I subsequently made, to resume occupation of the premises to carry on the reinstatement process. As to the first issue raised, by Question (1), namely, whether the defendant terminated the lease by re-entry on 7 March 2000, the plaintiff succeeded in the sense that I held that question not now to arise, it having been determined in a practical way by the agreement between the parties embodied in the orders made by Santow J on 6 April 2000. In this sense, the plaintiff won on that issue, because the decision meant that the defendant was not entitled to rely in his favour upon a valid termination of the lease on 7 March 2000. The third issue, encompassed in Question (4), was whether the plaintiff was entitled to the indulgence of relief from the consequences of his breaches of the lease in relation to the exercise of the option contained in the commercial lease. On this issue the plaintiff lost, so that the situation became that the lease expired by effluxion of time and at this time continues as a tenancy from month to month, pursuant to the terms of the commercial lease. 2 An additional matter which the defendant seeks to have taken into account on the question of costs is as follows. The plaintiff was let into occupation, under my orders, on 14 August 2000 to complete the reinstatement work. The evidence at the trial was that there were only two or three days needed to complete the reinstatement work at the time the plaintiff was excluded from the premises, in May 2000. Today, some 55 days after the resumption of occupation, it is agreed that no notice has been given to the defendant by the plaintiff of the completion of the work. It was stated in Court only today that the work was completed yesterday; and this, after the plaintiff's solicitor's instructions, given in open court, had been changed on two occasions as to whether and when the work had been completed. The defendant submits that this state of affairs is further evidence of an attitude on the plaintiff's part as to the litigation and the commercial lease that ought be taken into account in the defendant's favour on the determination of costs in these proceedings. In making these remarks, I should say that this matter was raised in Court only this morning and that Miss Thurairajah, for the plaintiff, has not had any opportunity to bring forward any material she might desire to have taken into account on an assessment of the plaintiff's conduct since 4 August 2000. That she has not had that opportunity does not matter for reasons which will subsequently appear. 3 The principles relating to costs of proceedings are that, in general terms, a plaintiff who is successful, albeit only partly successful, in proceedings ought have the costs of the proceedings. That is, the costs ought follow the event, unless there are other factors or circumstances which justify the making of a different order. One circumstance which is commonly relied on in support of a different order is that there were discrete issues in the proceedings and different results upon those discrete issues, by reason of which justice requires that the generally unsuccessful party should have taken into account in its favour the successes which it has achieved on some issues. Thus, if the issue on which a plaintiff wins has taken only one day of court time and another matter has been agitated for 50 days, upon which the defendant has been completely successful, then it would be unjust simply to order the plaintiff to pay the costs of the proceedings: see generally Supreme Court Rules 1970 Part 52A r 11; Hughes v Western Australian Cricket Association (1986) ATPR 40-748; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261; Waters v P C Henderson (Australia) Pty Ltd 6 July 1994 NSWCA unreported; Ronnoc Finance Ltd v Spectrum Network Systems Ltd 19 November 1997 NSWSC Santow J unreported; and my own decisions in Domino Hire Pty Ltd v Pioneer Park Pty Ltd (In Liq) [2000] NSWSC 313 and JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 432. 4 The difficulty which the defendant faces in this regard in these proceedings is that, in my view, the plaintiff must be regarded as having succeeded on two out of the three issues. An argument was put by Mr Oliveri for the defendant that, in reality, all that mattered to the parties was whether or not the option had been validly exercised and, the plaintiff having lost on that issue, the defendant should be regarded as the successful party. To that argument I do not accede. The defendant avowedly chose to maintain the other two issues on which it failed and there is nothing that takes these proceedings out of the class of ordinary adversary proceedings in which costs will usually follow the event. 5 Furthermore, the issue on which the defendant succeeded I do not regard as a discrete issue, in the sense in which that term is understood in this area of the law. In fact, the same subject matter was necessarily traversed in relation to the issues on which the defendant failed, particularly in relation to the facts and circumstances relating to the payment of rent, as in relation to the first issue, because the defendant maintained that, although the rent was up-to-date at the time of the March forfeiture, repeated unpunctuality in the payment of the rent ought be regarded as justifying termination under clause 29(b)(ii) of the commercial lease. There were not, in fact, separate bodies of evidence and of argument which could be regarded as related, in the one case, to an issue on which the plaintiff was successful and, in the other case, to an issue on which the defendant was successful. In those circumstances, subject to one other argument put to me by Mr Oliveri, the plaintiff should have his costs on the basis of the ordinary policy that the generally successful party should have the general costs in the proceedings. 6 The other basis on which Mr Oliveri contended that the ordinary course should be departed from was that the conduct of the plaintiff had been such that it "provoked" the conduct of the defendant, including his conduct in re-entering the premises in May 2000, which I have found he was not entitled to do. Furthermore, Mr Oliveri seeks to rely to bolster his argument on recent conduct of the plaintiff particularly his long drawn out process of reinstatement and equivocal statements as to completion. 7 Whilst I shall say that, prima facie, it appears extraordinary that it has taken 55 days to have this comparatively small amount of work done and that progress has not, in the meantime, been in any way reported to the defendant, as I have already indicated, that issue has not been fully agitated. However, it has been unnecessary to do this because I have taken the view that the recent conduct, even if it be unsatisfactory, is not in any event appropriate to be taken into account in determining the incidence of the costs of the proceedings up to the date at which judgment was delivered and orders made. Without adverting to recent events, however, I have made observations in my judgment as to the unsatisfactoriness of the conduct of the plaintiff in certain regards and have characterised that conduct as evincing an attitude held by the plaintiff which has meant that he ought not be forced upon an unwilling landlord as tenant for a renewed term. This conduct related both to the obligation to pay rent and to the damage inflicted on the floor of the premises: see my judgment [26]. However, none of this, in reality, went to the merits of the contest concerning the validity of the May termination or the validity or relevance of the March termination of the commercial lease which the defendant purported to effect and I am not prepared to depart from the usual course as to costs on the basis of any conduct of the plaintiff. 8 The situation therefore is that, bearing in mind that I am not of the view that there was an issue discrete in the relevant sense on which the defendant succeeded and bearing also in mind that in my view the evidence and argument that related solely to the exercise of discretion as to the indulgence sought were not of great extent, the order that I propose to make in relation to the costs of the proceedings is an order that the defendant pay the plaintiff's costs of the proceedings. 9 One other matter that I should advert to is that, at the time of the making of the orders of 6 April 2000, Santow J ordered that the plaintiff pay the defendant $1,500 by way of costs of steps taken to that point and that, in fact, that $1,500 was paid. That order, having been made and carried out, cannot now be revoked, but Miss Thurairajah has asked that that sum ought be ordered to be repaid in light of subsequent events, including the plaintiff's general success in the proceedings and his obtaining a general order for costs in his favour. She says that this ought be done because the defendant had disregarded the Court's orders of 6 April 2000. I do not accede to this submission. Part of the consideration which the plaintiff, in effect, gave for the agreement embodied in those orders was the payment of the $1,500. Whilst it was found that the defendant had, in fact, not acted in accordance with Santow J's orders in re-entering the premises in May 2000, I do not regard his conduct as contumelious in this regard. He believed, however erroneously, that the steps being taken at the time were not reasonable within the terms of the orders. Nothing should be done to affect those orders or the payment made under them, and the general order in the plaintiff's favour should not extend to the costs of the portion of the proceedings to which that order of Santow J related. 10 So far as the question of indemnity costs is concerned, as there are no costs to be ordered in the defendant's favour, there can be no question of them being upon the indemnity basis. So far as the costs order in favour of the plaintiff is concerned, in my view there is no factor which takes the matter out of the ordinary course so as to require those costs to be ordered on the indemnity, rather than the ordinary, basis. In particular, the determination of what I have described in this judgment as the first and second issues was far from easy and it was not, in my view, at any stage self evident that the issues would be determined in the way they were or that it was irresponsible for the arguments put on behalf of the defendant to be maintained, albeit they were ultimately unsuccessful. 11 I order that the defendant pay the plaintiff's costs of the proceedings, other than the costs of the application referred to in order 7 of the orders made by Santow J on 6 April 2000. I grant liberty to apply before me in relation to the costs order on three days notice. …oOo…
Last Modified: 11/10/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Ell
Cisera
The Court ordered that the defendant pay the plaintiff's costs of the proceedings, other than the costs of the application referred to in order 7 of the orders made by Santow J on 6 April 2000; liberty to apply before the Court on three days notice (see [11]).