Jamison 17 Pty Ltd v Jaynick Pty Ltd & Anor

Supreme Court of NSW|2024-02-09|Before: Henry J

JUDGMENT

On 14 December 2023, I delivered reasons for judgment in these proceedings, which involved disputes about the use of a right of carriageway: Jamison 17 Pty Ltd v Jaynick Pty Ltd [2023] NSWSC 1562 (Judgment).
These reasons deal with costs, the parties having not agreed on that issue. They assume familiarity with the Judgment and adopt the same terms and abbreviations it uses.
As the Judgment records, I granted Jamison final relief by ordering the Defendants not to leave boats, vehicles or other goods on the right of carriageway other than for a period of no longer than 15 minutes in connection with the movement of boats, equipment and other goods on and off the Defendants' land and made a declaration that a boat with dimensions of 6.39m (21ft) length and 2.5m (8.2ft) width when transported using a forklift cannot go, pass and repass along the Right of Carriageway without encroaching on other parts of Lot C DP 406729. I refused Jamison's application for final injunctive relief in respect of the incidents of trespass that had occurred in 2020.
In the Judgment, I noted that as Jamison experienced success in obtaining some but not all of the relief it claimed and also at the hearing abandoned its claim for an injunction preventing the Defendants from transporting boats along the right of carriageway using a forklift, it seemed appropriate for the Defendants to pay a proportion but not all of Jamison's costs. I deferred making a costs order to enable the parties to consider the Judgment and see if they could agree on the costs order to be made.

Background

Jamison is registered proprietor of Lot C. The registered proprietors of Lot B are two of the directors of Jaynick. Mr Ames is a third director.
Soon after it became proprietor of Lot C in 2019, Jamison became aggrieved that its neighbours were obstructing the right of carriageway with boats and equipment. It constructed bollards on Lot C along the border of the right of carriageway.
By summons, Jamison brought proceedings against Jaynick and another company (against which proceedings were later resolved by consent). Slattery J granted interim relief on 19 November 2020, relevantly: (2) On the usual undertaking as to damages being provided by the Plaintiff, order that the First Defendant will remove all its items currently obstructing the Right of Way on or before 4pm 26 November 2020. (3) On the usual undertaking as to damages being provided by the Plaintiff, order that the First Defendant will not cause any of its boats, vehicles, engines, building materials, or heavy equipment to be parked (except temporarily for loading and unloading) or otherwise stored on the Right of Way, pending further Order.

Contempt proceedings

On 2 July 2021, Jamison filed an Amended Notice of Motion seeking that the Defendants be found guilty of contempt for failing to comply with the 19 November orders (Contempt Motion). A separate statement of charge alleged 11 breaches of orders (2) and (3) of the 19 November interim relief.
On 10 August 2021, Jamison filed evidence on its Contempt Motion. On 26 August 2021, both Defendants pleaded not guilty to all 11 charges.
In September and early October 2021, Jamison indicated to the Defendants that it would seek to rely on further evidence. The Defendants resisted this course at the hearing of the Contempt Motion before me on 27 October 2021.
At the hearing, I granted leave to Jamison to rely on parts of the further evidence but would not accept the balance. As a consequence of that ruling, Jamison withdrew its Contempt Motion. Orders were made dismissing the charges of contempt and for the Defendants' costs of the Contempt Motion to be paid by Jamison, as follows: 2. Costs of the plaintiff's application for the orders referred to above as against the first and third defendants be paid by the plaintiff on an ordinary basis as assessed or agreed.

Proceedings for final relief

On 12 November 2021, Jamison filed a Further Amended Summons against Jaynick and Mr Ames, seeking final injunctive relief. By the time of the hearing in May 2023, and following some amendments after the hearing, Jamison's prayers for relief sought: 1. Mandatory Injunction preventing the First Defendant, including its servants and agents, and the Third Defendant from: (a) Parking or leaving on the Right of Carriageway any boats, vehicles, engines or any other goods or authorising any other person from doing so (other than transiently and in connection with the movement of such boats or goods onto or off [Lot B]). (b) Causing or permitting any boats to be transported on the Right of Carriage Way through the use of a forklift. (c) In the alternative to b, causing or permitting any boats or other goods to be transported on the [right of carriageway] by any combination of: i. a boat or other goods; and ii. a forklift with where the boat or other goods have an overall length of greater than 12ft (3.6576 meters) 4.88m (16') or an overall width greater than 6ft (1.8288 meters) or such other length as the Court may determine. (d) Entering upon (or causing any vehicle, trailer or towed boat to enter upon) any that part of [Lot C] which is contiguous with the inside corner of the 90° turn on the Right of Carriageway (the "Splay Corner") which is outside the area of the Right of Carriage Way. (e) Damaging or interfering with, or causing or permitting a vehicle, boat or vehicle to collide with, any bollard or barrier installed on that part of [Lot C] outside the area of the Right of Carriageway but adjacent thereto the boundary of the Right of Carriageway.
The matter came before me for final hearing on 15-18 May 2023. On the last day during closing submissions, the Defendants made an important concession, admitting that by parking and storing boats on the right of carriageway, they had breached the November 19 interim injunction: Judgment at [67].
At the hearing, extensive evidence was led, including reports and oral evidence from three experts, Mr Beard, Mr Palmer and Mr McLaren, who addressed safety risks and compliance matters in the use of forklifts along the carriageway. As I noted at [47] of the Principal Judgment, these "safety issues" had largely fallen away by the end of the hearing.
At [37] of the Principal Judgment, I found that the key issues for determination were: (1) whether, and the extent to which, there has been excessive use by reason of the Defendants parking and leaving boats on the right of carriageway; (2) whether there is, or would be, excessive use of the right of carriageway by a forklift towing a boat that is greater than 4.66m (16ft) long or 1.83m (6ft) wide, or some other length; (3) whether, and the extent to which, the Defendants have encroached on Lot C outside the area of the right of carriageway (on the Splay Corner) and damaged the bollards or other structures on that part of the land; and (4) what relief (if any) should, in the exercise of the Court's discretion, be granted.
In the Principal Judgment, I found, in summary, that: 1. the Defendants had excessively used the right of carriageway by leaving boats on it (the Defendants admitted as much): [67]; 2. a boat 4.88m (16ft) long and 2.2m (7.2ft) wide carried on a forklift can pass along the carriageway without excessive use, but a boat 6.39m (21ft) long and 2.5m (8.2ft) wide cannot: [90]; and 3. the Defendants had damaged bollards on Lot C and, at the Splay Corner, had encroached on parts of Lot C outside the right of carriageway: [93].
By way of final relief, I made the following orders (at [123]): 1. a final injunction (as sought in prayer 1(a)) ordering the Defendants not to leave on the right of carriageway any boat, vehicle, engine or other goods, other than for a period for no longer than 15 minutes and in connection with moving the boat, vehicle, engine or good on or off Lot B; 2. a declaration (rather than the injunction sought in prayer 1(c)) that a boat 6.39m (21ft) long and 2.5m (8.2ft) wide when carried on a forklift cannot pass along the right of carriageway without encroaching on other parts of Lot C.
I otherwise dismissed Jamison's Further Amended Summons. In particular, I refused to grant permanent injunctive relief restraining the Defendants from trespassing onto Lot C or damaging the bollards: [113]-[120].

Legal principles on costs

The principles applicable to the making of an order for costs are well established.
The Court has a broad discretion to determine who should pay costs, the extent of those costs and whether they should be paid on an ordinary or indemnity basis: Civil Procedure Act 2005 (NSW) s 98(1).
Although broad, the Court's discretion as to costs is subject to legislative provisions, Court rules and established principles, including the principle that the award of costs is compensatory in nature, not punitive: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 (Oshlack) at [44] and [65].
The usual rule is that costs follow "the event" and are payable on an ordinary basis unless it appears that some other costs order should be made as to part or all of the costs: Uniform Civil Procedure Rules 2005 (NSW) rr 42.1 and 42.2.
There are no fixed rules for identifying the "event", or the circumstances where the default position may be departed from: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [35].
The authorities set out various considerations where there is a mixed outcome in proceedings. I adopt the summary of principles in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (Bostik) at [38], as follows: Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal. …. Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed). A separable issue can relate to "any disputed question of fact or law" before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34]. Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.
This statement of principles was recently approved in Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2); Taylor v LK Group Investments Pty Ltd (No 2) [2023] NSWCA 322 at [7] per Mitchelmore JA and again in Croc's Franchising Pty Ltd v Alamdo Holdings Pty Ltd (No 3) [2023] NSWCA 316: [7] Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22; Mahaffey v Mahaffey (2018) 97 NSWLR 119; [2018] NSWCA 42 at [275].
The question of whether there should be a departure from the ordinary rule that costs follow the event should be considered with regard to the idea of fairness underlying the making of the costs order and what the Court considers to be the responsibility of each party for the incurring of costs. Generally, a successful party ought not be deprived of their costs unless they are guilty of some sort of misconduct relating to or leading up to the circumstances of the litigation: Oshlack at [13].
Since Jamison seeks to revisit the order of costs made against it in the contempt application, it is appropriate to say something about costs in cases of contempt.
Contempt proceedings are conducted in the civil jurisdiction of the Court and attract the applicable rules in relation to costs, including that costs follow the event: Hinch v Attorney General for the State of Victoria (1987) 164 CLR 15 at 88-89; [1987] HCA 56; Mahaffy v Mahaffy [2018] NSWCA 42 at [274] (Mahaffy).
Sometimes, an award of costs against a contemnor is the sole mark of the Court's disapproval: Attorney-General for NSW v Mundey [1972] 2 NSWLR 887 at 915 per Hope JA; Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 at 657 per Gleeson CJ, Kirby P and Hope JA. Often, if the Court chooses to impose no fine or other penalty, then costs will be on the indemnity basis: eg Blacktown City Council v Nitopi [2019] NSWLEC 40 at [220]; ASIC v Sigalla (No 4) [2011] NSWSC 62 at [49] per White J.
There is, however, no rule of law that mandates awarding indemnity costs against contemnors: Mahaffy at [274], referring to McIntyre v Perkes (1988) 15 NSWLR 417 at 428 (Samuels JA, with whom Mahoney JA agreed).

Jamison's submissions

Jamison's position is that it was substantially successful in all parts of the case it closed on. It pointed to the four issues I formulated for determination at [37] of the Principal Judgment, and contended that the outcome on each issue was substantially in Jamison's favour.
Jamison accepted, however, that my finding on issue (2) (the maximum permissible dimensions of boats) was not the conclusion that Jamison had urged. However, it submitted that limited factual matter was not easily separated from the wider issue in which Jamison was successful, namely the issue that the Defendants' towed boats were regularly leaving the boundaries of the easement. Further, Jamison contended its position that the maximum permissible size of boat was shorter than 21 feet was not unreasonable, given that view was supported by evidence from its expert engineer.
Jamison accepted that the Court did not accept all of its positions on issue (4) (the appropriate relief). It accepted that I refused Jamison an injunction to restrain the Defendants from ongoing trespasses because Jamison could not prove the trespasses continued after proceedings were commenced. However, in Jamison's submission, if the Defendants stopped leaving the area of the easement only after proceedings commenced, that serves to confirm the role that the proceedings played in preventing the Defendants' wrongful use.
In any event, Jamison described as a "success" the "declaration" the Court made on this issue at [111], namely that Mr Ames' conduct in July 2020: "… reflected a dismissive attitude towards Jamison's property and was suggestive of a wilful disregard by the Defendants of Jamison's rights."
By obtaining relief to curb that "dismissive" approach to the constraints of the easement, Jamison submits that it was "successful" in relation to that issue.
Jamison rejects that its treatment of the safety issue should count against it and it was incorrect to argue (as the Defendants did) that Jamison "abandoned" this issue (in withdrawing prayer 1b). Rather, Jamison maintained that it withdrew that prayer only after settling the relevant safety issue, with extra safety equipment to be installed at the Defendants' cost. It submits that this was an appropriate course given s 56 of the Civil Procedure Act, correctly, in my view, and Jamison's attempt to narrow the issues in dispute should not result in adverse costs.
Jamison also submitted that its decision to call evidence on the "safety" issues, contended the safety issue settled after that evidence was given and when it emerged the Defendants' own safety expert agreed with Jamison's expert.
On these bases, Jamison initially submitted that the outcome of the case could not be said to have been "mixed". However, in its reply submissions, it accepted that some apportionment was necessary, because the Court refused Jamison the full injunctive relief it sought and contends that that the Defendants should pay 80% of Jamison's costs of the proceedings.

Defendants' submissions

The Defendants take a very different view of Jamison's success. They argued that Jamison succeeded in obtaining only one of what it referred to as the seven prayers of relief it sought, that is, the injunction preventing the Defendants from leaving boats and other items in the right of carriageway.
Rather than analysing success in terms of the four issues formulated at [37] of the Principal Judgment, the Defendants focused on Jamison's prayers for relief. The Defendants submitted that Jamison had largely unqualified success only on prayer 1a (the prayer for an injunction restraining the Defendants from leaving boats and other items in the right of carriageway).
Of the remaining prayers, the Defendants submits that Jamison either (according to the Defendants): 1. withdrew its claim for broad final relief on the "safety issue" (prayer 1b); 2. received a declaration framed by the Court, rather than an injunction in the terms sought (prayer 1c), and specifying a smaller boat size than Jamison had argued; and 3. received no final relief on the trespass question, despite adverse factual findings (prayers 1d and 1e).
The Defendants submit that even Jamison's success on prayer 1a did not entitle it to costs, because that was a minor success in the context of its failure on the remainder of its claim. Instead, the Defendants said they were entitled to all of their costs of litigating prayers 1b, 1c, 1d and 1e, and that there should be no order as to costs on all remaining issues.
As to the costs of litigating prayer 1b, 1c, 1d and 1e, the Defendants' submissions contend that an order should be made that Jamison pay the Defendants' costs on the lump sum basis, or as agreed or assessed, noting that their costs relating to prayers 1b and 1c were $71,843.23 and $20,300 respectively.
Further, on the settlement of the "safety issue", the Defendants denied that it was the evidence of Jamison's expert, Mr Palmer, that led to settlement, noting that in the Principal Judgment I had doubts about the reliability of this evidence: at [89].

Consideration and determination

I reject the Defendants' submissions regarding the extent (or lack) of Jamison's success in these proceedings and its approach of assessing success by reference to the seven prayers for relief. Leaving to one side that two of the prayers were for equitable compensation and damages, which were never in issue, the Defendants' characterisation of Jamison's failure in respect of all other issues except for a "partial" success in relation to prayer 1 is fundamentally flawed and misleading.
Jamison succeeded in obtaining a permanent injunction against the Defendants (prayer 1a), and declaratory relief in terms similar to the injunctive relief it sought in prayer 1c. Importantly, the permanent injunction achieves a major component of the practical outcome Jamison sought: for the right of carriageway to remain largely unobstructed. That was no trifling success given there was debate over the first three days of the hearing as to whether the Defendants had in fact parked boats on the carriageway for periods at all. Further, it was only on day four that the Defendants acknowledged what was plain from the evidence, namely that they had repeatedly breached the interim orders and were parking boats for extended periods of time.
Further, the Court found for Jamison on the other major factual issue in dispute, namely whether the Defendant had trespassed on Jamison's land and interfered with the bollards. That issue was the subject of significant evidence and debate, with the Defendants maintaining throughout that they had not trespassed, which the Court found against them. The Court declined to grant final injunctive relief in relation to that issue for discretionary reasons rather than a failure by Jamison to establish a legal right to relief. In that context, I reject the Defendants' submission that Jamison failed on the issues raised by prayers 1d and 1e. Jamison had the benefit of factual findings in its favour, many of which reflected adversely on the Defendants' conduct.
It is simply inaccurate for the Defendants to submit that Jamison "wasted court time wantonly or recklessly causing another party to incur costs".
Considered objectively, overall, Jamison won the day in Court. That said, I accept that some reduction is not inappropriate having regard to the way in which Jamison's case was finally put.
As Jamison submits, the parties are to be commended for settling the "safety issue" and thereby narrowing the compass of the dispute. I remain, however, not entirely persuaded that it was forensically necessary to call the extent of safety evidence in this case having regard to what were really the issues between the parties.
Jamison proposes a 20% reduction. As the authorities above recognised, it is not appropriate to seek to allocate costs on an issue by issue basis. Applying a broad brush and impressionistic approach, I am persuaded by Jamison's submission that a discount of 20% in relation to their costs is entirely reasonable and appropriate in this case. That discount reflects Jamison's overall success but also takes into account that one of the issues they abandoned was their claim for injunctive relief in respect of the use of a forklift to transport boats on the right of carriage.
Accordingly, I will make an order that the Defendants pay 80% of Jamison's costs on an ordinary basis.

Costs of the contempt application

Jamison also seeks to re-open the costs order made on 27 October 2021 of its earlier Contempt Motion. This argument focused on the Defendants' admission, during the final hearing, that they had breached the November 2019 interim orders, which breaches were the subject of Jamison's contempt charges against the Defendants. Given those breaches were now admitted, Jamison contends that, the Defendants should not have their costs of the Contempt Motion as ordered on 27 October 2021.
Jamison recognises that its own delay in serving evidence led to the withdrawal of the Contempt Motion, and for that reason accepts that it should not recover its costs either. The order it seeks, in those circumstances, is for each party to bear their own costs.
The Defendants, in their reply submissions, opposed this course. They argue that the 27 October 2021 costs order was made not from any findings of fact or law, but due to Jamison's actions in filing late evidence. It was also relevant, they submit, that Jamison had to make out the contempt charges to the criminal standard of proof, and its withdrawal from the contempt application may indicate it did not have the proof to do so.
Jamison submitted that I could vary the 27 October 2020 order under UCPR r 36.16(3) which provides: 36.16 Further power to set aside or vary judgment or order … (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it - (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
There is some reason to doubt whether r 36.16(3) allows the Court to vary a costs order. As explained in in Bartlett v Australia & New Zealand Banking Group Ltd (No 2) (2016) 92 NSWLR 670; [2016] NSWCA 142 (Bartlett), the "weight of authority" treats costs orders as falling outside the scope of r 36.16(3): [21] In Road and Traffic Authority of NSW v Palmer (No 2) [2005] NSWCA 140, the Court (Giles JA, Spigelman CJ and Handley JA agreeing) found that a costs order determines a claim "for relief, the relief claim being orders disposing of the costs of the trial and of the appeals": [21]. However, in Hancock v Arnold; Dodd v Arnold (No 2) [2009] NSWCA 19, the Court (Ipp, McColl and Basten JJA), observed of UCPR, r 36.16(3) at [10]: The precise scope of this provision is unclear. Read literally, it might be thought to operate only in respect of orders which were not sought by any party. That reading seems implausible. Given its context, it is more likely that the distinction intended to be drawn is between substantive relief, to which the power does not extend, and ancillary or consequential relief, to which it does extend. On that understanding, a costs order would clearly fall within the latter category. Such a distinction would make practical sense because appropriate orders as to costs frequently depend upon the existence of offers of compromise which are properly not known to the Court until after substantive relief has been determined. On that basis, a party seeking to vary a costs order would not need to rely upon sub-r (3A). [22] Notwithstanding the statement in Hancock, the weight of authority appears to support the position taken by Giles JA in Palmer: see AT v Cmr of Police (NSW) (No 2) [2010] NSWCA 337 at [7]-[13] (per Basten JA, Beazley and Macfarlan JJA agreeing); Deputy Cmr of Taxation v Meredith (No 2) [2008] NSWCA 133; 75 NSWLR 462; Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd (No 2) [2009] NSWCA 336 at [8], [10] (per Campbell JA, McColl JA and Sackville AJA agreeing); Short v Crawley (No 45) [2013] NSWSC 1541 at [21] (per White J).
In Bartlett, the Court of Appeal did not finally determine the applicability of r 36.16(3) to costs orders. See also in Rodi v Gelonesi [2016] NSWCA 348 at [36] per Payne JA.
Jamison suggests that, whatever the approach to final costs orders, r 36.16(3) is available in the context of costs of interlocutory steps in the proceeding and assumes the Contempt Motion was interlocutory in nature.
Irrespective of whether r 36.16(3) provides power for the Court to vary the costs order made in relation to the Contempt Motion, I am not persuaded by Jamison's submission that I should do so in this case. While acknowledging the force of their submissions, I do not consider it appropriate to revisit that costs order at this time. Jamison may have been vindicated but the position remains that the Contempt Motion was withdrawn following the late service of evidence, much of which was not admitted for the purpose of that hearing.
I note, however, that much of that evidence was relevant to the final hearing.

Conclusion and orders

For these reasons, I make the following order: 1. Subject to any other order made in the proceedings, the Defendants to pay 80% of the Plaintiff's costs of the proceedings on an ordinary basis as agreed or assessed.

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. Decision last updated: 09 February 2024

Civil Procedure Act 2005(NSW)s 98(1), s 98(1).

Uniform Civil Procedure Rules 2005(NSW)rr 42.1, 42.2, rr 42.1

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