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

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.
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.
I now have received submissions as to costs.
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.”

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1605
Decision Date: 23 November 2022

CaseChat Overview and Summary

Curve Securities Pty Ltd brought proceedings against Young, seeking damages and other remedies in relation to the defendant's alleged failure to repay a loan. The plaintiff sought to amend its Commercial List Statement, which was opposed by the defendant. After circulating several proposed forms of the amended statement, the plaintiff was granted leave to amend it. The plaintiff then sought to avoid paying the defendant's costs of the application for leave to amend the Commercial List Statement and a Notice of Motion seeking that the then current Summons and Commercial List Statement be struck out and orders as to discovery. The court had to determine whether the leave granted to file a further amendment constituted a dispensation or indulgence for which costs should be paid and whether the plaintiff should pay the defendant's costs of the Notice of Motion.

The court found that the leave granted to file a further amendment did not constitute a dispensation or indulgence for which costs should be paid. The court held that the plaintiff's application for leave to amend the Commercial List Statement was not frivolous or vexatious, and that the amendment was necessary to enable the plaintiff to pursue its claim. The court also found that the plaintiff should not pay the defendant's costs of the Notice of Motion, as the Notice of Motion was an attempt to relitigate an issue that had already been decided and was therefore vexatious. The court held that the plaintiff was not required to pay costs of its successful application for leave to amend the Commercial List Statement or the defendant's costs of the Notice of Motion.

The court ordered that the plaintiff was not required to pay the defendant's costs of the Notice of Motion and that the plaintiff was only required to pay its own costs of the application for leave to amend the Commercial List Statement. The court also made orders as to discovery, allowing the plaintiff to obtain further information from the defendant in relation to the claim. The court held that the amendment to the Commercial List Statement was necessary to enable the plaintiff to pursue its claim and that the defendant's opposition to the amendment was not justified. The court found that the plaintiff's application for leave to amend the Commercial List Statement was not frivolous or vexatious, and that the amendment was necessary to enable the plaintiff to pursue its claim.

Orders