ACI Operations Py Ltd v Berri Limited (No 2)

In the matter of ACI Operations Pty Ltd versus Berri Limited, the court addressed an application for leave to discontinue proceedings brought by the plaintiff, ACI Operations Pty Ltd. The case was heard in the Supreme Court of New South Wales. The dispute centred around the plaintiff's application for permission to discontinue the proceedings, which had been initiated but not yet heard on the merits. The primary issue before the court was whether the plaintiff was entitled to its costs of the proceeding on a party and party basis following the discontinuance, especially considering the defendant's change of position after the proceedings commenced.

The court examined whether the discontinuance was fair and whether the defendant's change of position warranted an award of costs to the plaintiff. The court noted that under section 24(1) of the Supreme Court Act 1986 and Rules 25.05 and 63.15 of the Supreme Court Rules, the court has broad discretion to order costs as it sees fit. The court considered the principles of fairness and justice, weighing the circumstances surrounding the discontinuance and the defendant's change of position. In this instance, the court found that the plaintiff was entitled to its costs on a party and party basis, given the defendant's actions post-commencement of the proceedings.

The reasoning of the court emphasised the importance of the defendant's change of position, which had a significant impact on the proceedings. The court held that such changes could justify an order for costs to the plaintiff. The court ultimately concluded that the plaintiff's application for costs should be granted, as it was just and equitable to do so under the circumstances. The final orders reflected this decision, granting the plaintiff its costs of the proceeding on a party and party basis.