Drip World Pty Ltd v Dardy Touring Corp (No 2) - [2021] NSWSC 74

Supreme Court

New South Wales

Medium Neutral Citation: Drip World Pty Ltd v Dardy Touring Corp (No 2) [2021] NSWSC 74
Hearing dates: On the papers
Date of orders: 12 February 2021
Decision date: 12 February 2021
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Plaintiff to pay second defendant’s costs on indemnity basis to but not including 3 December 2020

Catchwords:
COSTS – whether costs should follow the event – whether costs should be made on an indemnity basis – whether plaintiff’s case as currently pleaded bound to fail - where plaintiff did not exist on date when cause of action alleged to arise - where plaintiff’s application to amend to substitute another company as plaintiff refused

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bookarelli Pty Ltd v Katanga Developments Pty Ltd (No 2) [2017] NSWCA 94
Calderbank v Calderbank [1975] 3 All ER 333
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Drip World Pty Ltd v Dardy Touring Corp [2020] NSWSC 1772
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401; [1988] FCA 202
Harrison v Schipp [2001] NSWCA 13
Hudson Resources Limited v AceA Resources Pte Ltd [2021] NSWSC 41
J-Corps Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; 46 IR 301
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASC 257 S

Category: Costs
Parties: Drip World Pty Ltd (Plaintiff)
Dardy Touring Corp (First Defendant)
William Morris Endeavour Entertainment, LLC (Second Defendant)
Representation:
Counsel:
D F Elliott (Plaintiff)
D R Sulan (Second Defendant)
Solicitors:
Piper Alderman (Plaintiff)
Baker McKenzie (Second Defendant)

File Number(s): 2020/149917

Judgment

I gave judgment in this matter on 9 December 2020. [1]
1. Drip World Pty Ltd v Dardy Touring Corp [2020] NSWSC 1772.
I am now dealing with the costs of the proceedings. It is agreed this may be done on the papers. These reasons assume familiarity with my 9 December 2020 judgment. I will use the same abbreviations.
I found that the proceedings as presently constituted had “difficulties” as Drip World did not exist on the date that the Deposit, on which it sued, was lodged with WME. [2]
2. See [7].
That understated matters somewhat. The case, as presently constituted, was for that reason bound to fail.
As I recorded,[3] Drip World recognised those difficulties and, by Amended Notice of Motion filed in court on 3 December 2020, sought leave to amend its Summons and Commercial List Statement. The amendment would, if granted, have substituted Yellow Presents as plaintiff and alleged that Yellow Presents, rather than Drip World, lodged the Deposit with WME and (in January 2019 and not, as originally alleged, in June 2019).
3. At [8].
In effect, Drip World thus abandoned its claim against WME. [4]
4. See [77].
I refused to grant Drip World leave to amend. This was because I concluded that service by Yellow…

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.

Keep reading for free

Create a free CaseChat account to read Drip World Pty Ltd v Dardy Touring Corp (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWSC 74
Decision Date: 12 February 2021

CaseChat Overview and Summary

The appeal was heard by the Full Court of the Federal Court of Australia, which involved a dispute between Drip World Pty Ltd and Dardy Touring Corp. The plaintiffs, Drip World, sought to recover damages for breach of contract and other claims relating to the alleged infringement of copyright. The central issue in this case was the determination of the appropriate costs order in light of the plaintiff's unsuccessful application to amend the pleadings to substitute another company as the plaintiff. The defendants, Dardy Touring Corp, argued that the plaintiff's case was bound to fail due to the plaintiff not existing on the date when the cause of action allegedly arose. The court needed to decide whether costs should follow the event and whether they should be awarded on an indemnity basis.

The court considered the precedent set by the High Court in the case of Esso Australia Resources Pty Ltd v Commissioner of State Revenue, which outlined the principles governing costs orders in Australian courts. The court determined that the plaintiff's case as currently pleaded was bound to fail, as the plaintiff did not exist at the time when the cause of action allegedly arose. This fact made it impossible for the plaintiff to succeed in its claims. Additionally, the court noted that the plaintiff's application to amend the pleadings to substitute another company as the plaintiff was refused, further supporting the conclusion that the plaintiff's case was bound to fail. Given these circumstances, the court held that costs should follow the event and be made on an indemnity basis.

Consequently, the Full Court of the Federal Court of Australia dismissed the appeal and ordered that the costs of the proceeding be paid by the plaintiffs to the defendants on an indemnity basis. The court's decision was based on the principle that where a plaintiff's case is bound to fail, costs should follow the event and be awarded on an indemnity basis, as established in Esso Australia Resources Pty Ltd v Commissioner of State Revenue. This outcome highlights the importance of ensuring that a plaintiff exists at the time when the cause of action arises and that any proposed amendments to the pleadings are permissible and justified.

Orders