Australian Securities Ltd v Borina Pty Ltd (No. 2)

[2017] NSWSC 1163

Supreme Court

New South Wales

Medium Neutral Citation:	Australian Securities Ltd v Borina Pty Ltd (No. 2) [2017] NSWSC 1163
Hearing dates:	31 August 2017
Date of orders:	31 August 2017
Decision date:	31 August 2017
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Vary the costs order made on 17 August 2017 so that it reads the defendant is to pay 50% of the plaintiff's costs of the notice of motion filed 25 May 2017, such costs to include the costs of considering and responding to the defendant's draft proposed cross-claims served on or about 17 February 2017 and 7 April 2017.
Cases Cited:	Australian Securities Ltd v Borina Pty Ltd [2017] NSWSC 1073
Category:	Costs
Parties:	Australian Securities Ltd (Plaintiff) Borina Pty Ltd (Defendant)
Representation:	Counsel: S Docker (Plaintiff) J Neal (Defendant)   Solicitors: Kemp Strang (Plaintiff) JPR Law (Defendant)
File Number(s):	2015/306078
Publication restriction:	Nil

Judgment

1. I delivered judgment on 17 August 2017 in relation to a motion brought by the defendant to file a cross-claim: Australian Securities Ltd v Borina Pty Ltd [2017] NSWSC 1073.

2. The costs order that I made was that the defendant was to pay 50% of the plaintiff's costs of the notice of motion filed 25 May 2017. The plaintiff now seeks that that order be varied principally by an additional order that the defendant is to pay the plaintiff's costs of considering and responding to draft cross-claims served prior to the notice of motion on 17 February and 17 April 2017 this year.

3. I do not consider that the plaintiff should be entitled to additional costs over and above the order that I have made.

4. However, in the alternative, the plaintiff seeks that the order be varied in a sense to clarify that the costs of considering those earlier forms of the cross-claim are included in the costs that the defendant is required under the order I made to pay. That order is opposed by the defendant.

5. It was always anticipated that the defendant would seek to file a cross-claim after the principal claim was resolved. The defendant forwarded various forms of the cross-claim for consideration to the plaintiff but no agreement was reached. That ultimately led to the filing of the notice of motion which I determined in my judgment of 17 August 2017.

6. I consider that it should be clarified that costs incurred by the plaintiff in considering forms of the cross-claim prior to the filing of the notice of motion were intended to be included in the costs order that I made.

7. Accordingly, I will vary the costs order I made so that it reads the defendant is to pay 50% of the plaintiff's costs of the notice of motion filed 25 May 2017, such costs to include the costs of considering and responding to the defendant's draft proposed cross-claims served on or about 17 February 2017 and 7 April 2017.

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Decision last updated: 31 August 2017