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No order for costs despite proceedings being struck out as bound to fail
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High Court makes no order as to costs following a successful application brought by the defendants to strike out proceedings as bound to fail, on the ground that, when looking at these proceedings in the round, the plaintiff was successful on one issue and the defendant was successful on the other, and consequently no order as to costs was appropriate.
Costs of legal proceedings - court struck out the proceedings in the principal judgement on the grounds that they were bound to fail - the plaintiff sought their costs on the basis that some of their reliefs were rendered moot due to a confirmation and undertakings given by the defendants on the first day of the hearing - the defendants cross applied for their costs on the basis that they were successful in their strike-out application - substantive proceedings related to a restrictive covenant that the defendants would not use the purchased property as a cinema or theatre venue for 20 years from the date of sale - plaintiff withdrew its application for the first two reliefs on day 1 of the hearing following the giving of certain undertakings and confirmations by the defendant - there was a contested hearing in relation the the third relief and the defendant was successful in having the proceedings struck out as they were bound to fail - the plaintiff withdrew their application for the two reliefs following undertakings and confirmations given by the defendants that the restrictive covenant was binding on any future third party owner of the property - prior to this the defendants had reserved their right to transfer the property free of the undertaking not to use the property or a cinema for a period of 20 years - the Court concluded that the "event" for deciding liability for costs was the confirmation and undertakings given by the defendants and this ‘event’ rendered the first two reliefs moot and consequently in relation to these two reliefs, costs should be awarded to the plaintiff - the Court was of the view that the two reliefs rendered moot were in effect aimed at the same thing and consequently considered them to be one issue in the case - the Court was of the view that therefore the plaintiff was successful on one issue and the defendant was successful on the other issue in the case, the strike out - in the circumstances it was appropriate to make no order as to costs.
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