Claimant Ordered to Pay Respondent's Costs in NSW Supreme Court

The court ordered the claimant to pay the respondent's costs due to the ordinary rule that costs should follow the event, unless there is a compelling reason to depart from this rule. The court found that none of the reasons provided by the claimant warranted a departure from the ordinary rule.

New South Wales Supreme Court

CITATION : [COMPANY] v [NAME].Tel Ltd [2007] NSWSC 1239 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 18/10/07

JUDGMENT DATE : 2 November 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : Order that applicant pay respondent's costs

CATCHWORDS : PROCEDURE - costs - whether costs should follow the event - no matter of principle

LEGISLATION CITED : Australian Securities and Investments Commission Act 2001, s.127 Uniform Civil Procedure Rules 2005, rule 42.1

CASES CITED : [COMPANY] v [NAME].Tel Ltd [2007] NSWSC 1188

[COMPANY] - First Plaintiff [COMPANY] Plaintiff [COMPANY] Plaintiff PARTIES : [COMPANY] Plaintiff [COMPANY] - First Defendant [NAME] Defendant [NAME] Defendant [NAME]

FILE NUMBER(S) : SC 5291/03

COUNSEL : [redacted]

SOLICITORS : [redacted]

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

FRIDAY, 2 NOVEMBER 2007

5291/03 [COMPANY] & 3 [NAME] v [COMPANY] & 2 [NAME]

JUDGMENT 1 I am dealing with the question of costs consequent upon my judgment of 23 October 2007: [2007] NSWSC 1188. 2 [NAME] submits that the SPL should be ordered to pay [NAME]'s costs of the interlocutory process filed in court on 18 October 2007 and heard on that day. The SPL submits that there should be no order as to costs. 3 Upon the hearing of the application, the SPL moved for certain orders requiring [NAME] to produce documents. [NAME] opposed the application. The court declined to make the orders sought by the SPL. On the basis prescribed by rule 42.1 of the Uniform Civil Procedure Rules 2005, therefore, the SPL should be ordered to pay [NAME]'s costs unless it appears to the court that some other order should be made. 4 In contending that the result ordinarily to be expected should be displaced, the SPL made the following points:

1. The submissions about the scope of s.68 on which [NAME] succeeded were raised for the first time at the hearing. They had not been mentioned in lengthy correspondence beforehand. Indeed, [NAME] had not opposed similar orders sought on an earlier occasion on the same basis. And [NAME] had previously given some documents to the SPL. 2. [NAME] had, in pre-hearing correspondence, suggested that the outcome sought by the SPL should be pursued in the separate proceedings commenced in May 2007 – something that the court observed might entail an abuse of process.

3. It could not be said that the SPL acted unreasonably in making the application, when the precise scope of s.68 was unclear and some of the documents were not otherwise available. 4. [NAME] was not obliged by s.127 of the Australian Securities and Investments Commission Act 2001 to oppose the application. 5. [NAME] had no objection to providing [NAME] of the documents (being [NAME] that was effectively in the public domain). 6. [NAME] and the SPL are acting in creditors' interests. 5 I am of the opinion that none of these factors warrants departure from the ordinary rule that costs should follow the event. 6 Item 1 does not, in my view, bespeak any unreasonable behaviour on the part of [NAME] which is entitled to deal with every application as it sees fit. Item 2 is irrelevant since the SPL did not press that basis. Item 3 is also irrelevant: an inquiry into or conclusion about the reasonableness of the conduct of the losing party is not an ingredient of a finding that costs should follow the event. Nor do I consider item 4 relevant: whether [NAME] was obliged to act as it did is beside the point; there is no suggestion that it was not entitled so to act. Item 5 has no real bearing on the question of the displacement of the ordinary rule; nor does item 6. 7 There being no basis on which the court should depart from the course laid down by rule 42.1, I order that [NAME], as special purpose liquidator of [COMPANY], pay the costs of Australian Securities and Investments Commission of the interlocutory process heard on 18 October 2007, such costs to be an expense in his administration as such special purpose liquidator. **********

02/11/2007 - Substituted "Public" for "Restricted" - Paragraph(s) Cover sheet

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