DSG Holdings Australia Pty Ltd v Helenic Pty Ltd (No 2)

[2014] NSWCA 142

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

DSG Holdings Australia Pty Ltd v Helenic Pty Ltd (No 2) [2014] NSWCA 142

Hearing dates:

On the papers

Decision date:

13 May 2014

Before:

Meagher JA; Leeming JA; Bergin CJ in Eq

Decision:

1. The first and second appellants pay the respondents' costs of these proceedings as agreed or assessed.

2. To the extent that the costs of the first and second respondents (as agreed or assessed) are not recovered from the first or second appellant, those costs be costs in the winding up of the third respondent.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - costs - costs following the event - no order for interest on costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 101

Cases Cited:

Drummond and Rosen Pty Ltd v Easey (No 2) [2009] NSWCA 331
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211; 84 NSWLR 436
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99

Category:

Costs

Parties:

DSG Holdings Australia Pty Ltd (first applicant)
Bicheno Investments Pty Ltd (second applicant)
Helenic Pty Ltd (first respondent)
JFK Group Company Ltd (second respondent)
Retail Adventures Pty Ltd (in liquidation) (third respondent)
Vaughan Neil Strawbridge, John Lethbridge Greig and David John Frank Lombe as liquidators of the third and fifth respondents (fourth and sixth respondents)
Retail Administrators Holdings Pty Ltd (in liquidation) (fifth respondent)

Representation:

Counsel:
P Crutchfield SC with E Holmes and F Maher (applicants)
CRC Newlinds SC with V Whittaker (first and second respondents)
R Dick SC with L Livingston (fourth and sixth respondents)
Solicitors:
Russells (applicants)
Colin Biggers & Paisley (first and second respondents)
Herbert Smith Freehills (fourth and sixth respondents)

File Number(s):

2014/22696; 2014/40100

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2013] NSWSC 1973

Date of Decision:

2013-12-23 00:00:00

Before:

Robb J

File Number(s):

2013/273639

JUDGMENT

1. THE COURT: This matter was granted expedition and heard on 7 March 2014. At the conclusion of the hearing, this Court refused leave and to the extent necessary dismissed the appeal. Reasons for judgment were delivered on 3 April 2014, at which time the parties were directed within 14 days to file a note of any orders to be made by consent, failing which each party was to file and serve within that time proposed orders and short submissions as to the cost orders sought.

1. On 28 April 2014, in accordance with those directions, a proposed order was filed by the first and second respondents, with a short note saying that its terms were agreed with the other respondents, but that no response had been received from the legal representatives for the first and second applicants. Consistently with this, the Court's records do not disclose any other proposed order or short submissions which have been filed.

1. The orders proposed by the respondents are:

1. The first and second appellants pay the respondents' costs of these proceedings as agreed or assessed.

2. To the extent that the costs of the first and second respondents (as agreed or assessed) are not recovered from the first or second appellant, those costs be costs in the winding up of the third respondent.

3. Any party liable to pay a cost to another party pay interest in accordance with s 101 of the Civil Procedure Act 2005 (NSW) on amounts payable pursuant to these orders.

1. As was anticipated in this Court's reasons (at [143]), it is appropriate that the appellants pay the respondents' costs. There is no reason to displace the ordinary rule that costs follow the event. The first and second orders are appropriate.

1. The third order proposed is more problematic. Section 101(4) of the Civil Procedure Act 2005 (NSW) empowers the Court to order that interest be paid on any amount payable under an order for the payment of costs. There is a conflict in the authorities in this Court, some of which are referred to in Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [43] - [44]. On the one hand, in Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (No 2) [2013] NSWCA 211; 84 NSWLR 436 this Court said that "a party who contends that there should be an order for interest on costs must do more than point to the fact that the proceedings were protracted and that it had to outlay moneys on its own costs over a long period". On the other hand, in Drummondand Rosen Pty Ltd v Easey (No 2) [2009] NSWCA 331, this Court, differently constituted, said that ordinarily there should be an order for interest on costs.

1. It is inappropriate, in the absence of argument or a contradictor, to resolve the apparent conflict in the authorities. It is sufficient for present purposes to observe that all costs incurred in these proceedings, where the final judgment of the primary judge from which the appeal was brought was delivered as recently as 23 December 2013, must necessarily have been incurred very recently. Bearing in mind the additional considerations consequent upon Order 2, this is not an appropriate case for the awarding of interest on costs.

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Amendments

26 May 2014 - The coversheet has been amended to include the additional proceeding number of 2014/40100.

Amended paragraphs: Coversheet

Decision last updated: 26 May 2014