Curve Securities Pty Ltd v Young (No 3)

[2022] NSWSC 1605

Supreme Court

New South Wales

Medium Neutral Citation:

Curve Securities Pty Ltd v Young (No 3) [2022] NSWSC 1605

Hearing dates:

On the papers; submissions received 18 and 21 November 2022

Date of orders:

23 November 2022

Decision date:

23 November 2022

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

Orders made as to costs of the parties’ Notices of Motion dated 2 June 2022 and 16 June 2022

Catchwords:

COSTS – where plaintiff granted leave to amend its Commercial List Statement – where plaintiff had circulated several proposed forms of Amended Commercial List Statement – whether plaintiff should pay costs of its successful application – whether the leave granted to file a further amendment a dispensation or indulgence – whether plaintiff should pay costs of defendant’s Notice of Motion seeking that the then current Summons and Commercial List Statement be struck out and orders as to discovery

Cases Cited:

Curve Securities Pty Ltd v Young [2022] NSWSC 1016

Curve Securities Pty Ltd v Young (No 2) [2022] NSWSC 1436

Category:

Costs

Parties:

Curve Securities Pty Ltd (Plaintiff)
Alexander Young (First Defendant)
Ord Minnett Limited (Second Defendant)

Representation:

Counsel:
A F Fernon SC (Plaintiff)
P M Zielinski (First Defendant)
S Docker with A Gandar (Second Defendant)

Solicitors:
Hitch Advisory (Plaintiff)
Tom Howard Legal (First Defendant)
Lander & Rogers (Second Defendant)

File Number(s):

2021/103525

JUDGMENT

1. The background to this matter is set out in my judgments of 28 July 2022^[1] and 21 October 2022. ^[2]

   1. Curve Securities Pty Ltd v Young [2022] NSWSC 1016.

   2. Curve Securities Pty Ltd v Young (No 2) [2022] NSWSC 1436.

2. For the reasons I gave on 21 October 2022, I granted the plaintiff leave to amend its Commercial List Statement following the unhappy procedural history referred to in those reasons, and in the procedural chronology annexed to those reasons.

3. I now have received submissions as to costs.

4. At [62] of my 21 October 2022 judgment I expressed the tentative view that:

“What I am inclined to do is order that the plaintiff pay the defendants’ costs of resisting the plaintiff’s Notice of Motion of 2 June 2022, which costs are to include the activities in the procedural chronology from and including 5 April 2022; and to order that the defendants have leave to have those costs assessed forthwith and that such costs will be payable forthwith upon assessment.”

5. Curve raises only two matters in response to that suggestion.

6. The first is that the defendants should not have their costs of the hearing on 14 October 2022 because Curve was successful on that application in that it obtained leave to file what was by then the seventh proposed iteration of its Amended Commercial List Statement.

7. Ord Minnett submitted that Curve was seeking what was in effect a dispensation or indulgence. That is so, but I did find that, ultimately, Curve had articulated its allegations with sufficient specificity and that the defendants’ opposition to aspects of the proposed amendment bespoke a misunderstanding by them of what was being alleged. ^[3]

   3. For example at [43] and [46].

8. In my opinion, the appropriate result is that the parties pay their own costs of the hearing on 14 October 2022.

9. Curve also seeks to have excluded from the costs it must pay the component of Ord Minnett’s Notice of Motion of 16 June 2022 that sought orders as to discovery, the merits of which were not determined. Ultimately, orders were made as to discovery on 22 July 2022 in the form proposed by Curve.

10. In those circumstances, I make the following orders:

1. The plaintiff is to pay the defendants’ costs thrown away by reason of the amendments in the Amended Commercial List Statement filed in accordance with the leave granted in order 1 made 16 November 2022.

2. The plaintiff is to pay the defendants’ costs of the plaintiff’s Notice of Motion filed on 2 June 2022, including the activities in the procedural chronology attached to the judgment dated 21 October 2022 from and including 5 April 2022 but excluding the costs of the hearing on 14 October 2022.

3. There be no order as to the costs of the hearing on 14 October 2022, to the intent that each party pay their own costs of the hearing that day including cost of preparation for that hearing.

4. The plaintiff is to pay the second defendant’s costs of the second defendant’s Notice of Motion filed on 16 June 2022 but excluding any costs incurred by the second defendant concerning its application for disclosure of documents.

5. The costs the subject of orders 1, 2 and 4 above are assessable forthwith and will be payable forthwith on assessment.

**********

Endnotes