Comsec Campsie Pty Ltd v Comsec Training Pty Ltd

[2018] NSWDC 247

District Court

New South Wales

Medium Neutral Citation:	Comsec Campsie Pty Ltd v Comsec Training Pty Ltd [2018] NSWDC 247
Hearing dates:	15 August 2018
Date of orders:	15 August 2018
Decision date:	15 August 2018
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Make orders in accordance with the Consent Order signed and dated by the representatives of the parties and initialled by me, subject to the orders below. (2)   By consent, cross-claim dismissed. (3)   Note the third defendant’s notice of motion to join Andrew Lin withdrawn. (4)   Order the cross-claimant, Phillip Miles, to pay the costs of Comsec Campsie Pty Ltd specifically referable to Mr Miles’ cross-claim. (5)   Order the third defendant, Phillip Miles, pay Andrew Lin’s costs of the third defendant’s notice of motion. (6)   As the proceedings have resolved, the hearing date of 21 August 2018 is vacated.
Catchwords:	COSTS – notice of motion – not proceeded with – modest amount of costs
Category:	Costs
Parties:	Comsec Campsie Pty Ltd (ACN 606 627 481) (plaintiff/first cross-defendant) Comsec Training Pty Ltd (ACN 156 649 562) (first defendant) Rosa Moio (second defendant) Phillip Jacob Miles (third defendant/cross-claimant) Thi Hong Hai Dang (second cross-defendant) Andrew Lin (first respondent to the third defendant’s notice of motion)
Representation:	Counsel: Mr C D Wood (plaintiff/first cross-defendant)   Solicitors: Baybridge Lawyers (plaintiff/first cross-defendant) Jessie Icao Solicitors (first and second defendants) Juris Cor Legal (first respondent to the third defendant’s notice of motion)
File Number(s):	2016/348214
Publication restriction:	None

Judgment

1. The parties have in large measure agreed on a resolution of the proceedings, including the issues raised in the statement of claim and the cross-claim. The only residual questions concern the costs of Mr Miles’ cross-claim and the costs of the notice of motion filed by Mr Miles seeking to join Mr Andrew Lin to the proceedings as a fourth defendant.

2. The cross-defendants seek an order that, although the costs are expected to be modest, Mr Miles, as the cross-claimant, should pay the costs of the cross-claim since he is consenting to its dismissal. Although Mr Miles made submissions about costs, they were principally in respect of the notice of motion’s costs, and not in respect of the cross-claim. The circumstance that costs might be modest is not itself a reason to deny a party their modest entitlement. As the cross-claim is to be dismissed by consent, it is clear that the cross-defendants have been wholly successful. The cross-claimant must pay the cross-defendants’ costs of the cross-claim.

3. The other matter is the costs of the notice of motion seeking to join Mr Lin. A notice of motion by a cross-claimant seeking to join a party not to the cross-claim but as a defendant to the statement of claim might have some problems, but that is not a present concern since the notice of motion is not pressed. At issue are the costs of that application.

4. The cross-claim was filed on Friday, 10 August 2018 and served on Monday, 13 August. Thereafter, Mr Lin retained solicitors who sought to file a notice of appearance. Perhaps because the notice of motion had been filed electronically late on the Friday, a notice of appearance was not able to be filed.

5. There followed some communications between Mr Miles, the cross-claimant and third defendant, and the solicitors appearing for Mr Lin. At 11.03pm on the Monday, after some earlier email correspondence, Mr Miles informed Mr Lin's solicitor that "The plaintiff and the defendants are in a settlement negotiation and it is expected that it would be completed by Wednesday 15/08/2018", that Mr Miles would "not press the motion against Mr Lin if the matter is settled on Wednesday 15/08/2018" and that "Mr Lin or any person representing him is not required to attend Court on Wednesday 15/08/2018".

6. Further correspondence followed and at 4.08pm on Tuesday, 14 August Mr Miles informed Mr Lin's solicitor that "The plaintiff has settled this matter with the defendants". Also, that he did "not wish to proceed with my notice of motion joining Andrew Lin". Later that day, at 5.04pm, Mr Lin's solicitor referred to the costs incurred by Mr Lin in responding to the motion and said that costs were sought.

7. Subsequently, an affidavit was served upon Mr Miles, although in court today Mr Miles said that he had refused to accept the affidavit when it was served. That affidavit evidences that costs of $770 inclusive of GST were incurred up to the time of the service of the affidavit. These costs would include the costs of the letter, various emails, the preparation of the affidavit and perhaps other matters, but not the costs of today. The proceedings today appeared to involve the filing of a notice of appearance and the appearance for a little over an hour by Mr Seng on behalf of Mr Lin.

8. Mr Miles maintains that Mr Lin is “not entitled to a nickel, or one single cent” in costs. However, it is plain enough that his filing and service of his notice of motion caused Mr Lin to engage a solicitor and become liable for costs. Although I do not propose to set a fixed sum costs order, there is nothing in what I have seen to indicate that the sum referred to by Mr Lin's solicitors was in any way inappropriate. Since those costs have been incurred as a result of a motion, which has now been abandoned by Mr Miles, it is appropriate that an order for costs be made in favour of Mr Lin.

9. Accordingly, the orders of the Court are:

1. Make orders in accordance with the Consent Order signed and dated by the representatives of the parties and initialled by me, subject to the orders below.

2. By consent, cross-claim dismissed.

3. Note the third defendant’s notice of motion to join Andrew Lin withdrawn.

4. Order the cross-claimant, Phillip Miles, to pay the costs of Comsec Campsie Pty Ltd specifically referable to Mr Miles’ cross-claim.

5. Order the third defendant, Phillip Miles, pay Andrew Lin’s costs of the third defendant’s notice of motion.

6. As the proceedings have resolved, the hearing date of 21 August 2018 is vacated.

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Decision last updated: 07 September 2018