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

Case [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…

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

CaseChat Overview and Summary

DSG Holdings Australia Pty Ltd and another party appealed to the Court of Appeal of New South Wales against orders made by the primary judge. The dispute concerned the costs of proceedings, specifically whether interest should be awarded on those costs.

The central legal issue before the Court of Appeal was whether the primary judge erred in failing to order interest on the costs awarded to the respondents. The appellants sought to challenge the costs orders made by the primary judge, arguing that the exclusion of interest on those costs was an error.

The Court of Appeal considered the principles governing the award of costs and interest on costs. It was held that the primary judge had a discretion to award interest on costs, and that the failure to do so was not an error in the exercise of that discretion. The Court affirmed that the general rule of costs following the event applied, but that the specific award of interest on costs was a matter for the court's discretion, which had been properly exercised by the primary judge.

The Court of Appeal ordered that the first and second appellants pay the respondents' costs of the appeal, with provision for any unrecovered costs to be costs in the winding up of the third respondent.

Orders

Orders of the court

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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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