ASSK Investments Pty Ltd v Tyrrell

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

ASSK Investments Pty Ltd v Tyrrell [2023] NSWCA 216

Hearing dates:

5 September 2023

Decision date:

11 September 2023

Before:

Meagher JA; Leeming JA

Decision:

Summons seeking leave to appeal filed 16 June 2023 dismissed with costs.

Catchwords:

APPEALS – leave – costs – plaintiff discontinues proceedings – primary judge declines to depart from default order as to costs – whether issue of general importance – whether clear injustice – summons dismissed

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101(2)(c)

Uniform Civil Procedure Rules 2005 (NSW), r 42.19

Cases Cited:

Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32

Boden v Gleeson [2013] NSWCA 447

In the matter of 1st Fleet Pty Limited (in liq) and other companies [2017] NSWSC 506

Tugrul v Tarrants Financial Consultants Pty Ltd ACN 086 674 179 [No 5] [2014] NSWSC 437

Walton v Commonwealth Bank of Australia [2020] NSWCA 191

Category:

Principal judgment

Parties:

ASSK Investments Pty Ltd (Applicant)
Paul Tyrrell (Respondent)

Representation:

Counsel:
M Neil KC (Applicant)
D Mahendra (Respondent)

Solicitors:
TPS&Co Lawyers (Applicant)
Piper Alderman (Respondent)

File Number(s):

2023/118007

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2023] NSWSC 271

Date of Decision:

17 March 2023

Before:

Henry J

File Number(s):

2022/00138535

Judgment

1. THE COURT: ASSK Investments Pty Ltd sued its former employee Mr Paul Tyrrell in May 2022 based on a claim of breach of confidence after he left to work for another smash repair business. ASSK is approved to provide repairs to Aston Martin and Jaguar cars; according to ASSK, the rival is not. The commencement of proceedings was preceded by correspondence between ASSK’s solicitor and Mr Tyrrell, which ASSK contends was insufficiently candid. ASSK seems never to have sought interlocutory relief. The only substantive relief it sought was injunctive relief and orders for delivery up. After there was disagreement about providing documents informally, ASSK issued a motion for discovery, to which Mr Tyrrell consented, and thereafter formal discovery was given. The costs of that motion were reserved. ASSK thereafter sought leave to discontinue the proceedings.

2. The primary judge, Henry J, gave an ex tempore judgment. Her Honour found that ASSK had not displaced the default position in r 42.19 of the Uniform Civil Procedure Rules 2005 (NSW) for it to pay Mr Tyrrell’s costs of both the proceedings and the motion: ASSK Investments Pty Ltd v Tyrrell [2023] NSWSC 271. Her Honour explained at [21] that the rule “provides a default position in relation to costs that is subject to the discretion of the Court, with the onus on the plaintiff to establish that there is some sound position or good reason for departing from the ordinary course whereby the plaintiff would be required to pay the costs of the proceedings: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32, at [53]-[54]; see also Walton v Commonwealth Bank of Australia