ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Ltd; ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Limited

[2009] NSWSC 1334

CITATION:	ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Ltd; ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Limited [2009] NSWSC 1334
HEARING DATE(S):	20/11/09
JUDGMENT DATE :	2 December 2009
JURISDICTION:	Equity Division Commercial List
JUDGMENT OF:	Einstein J
DECISION:	See paragraph 10.
CATCHWORDS:	Principles re costs incurred under cross vesting applications
LEGISLATION CITED:	Jurisdiction of Courts (Cross-Vesting) Act 1987 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Darryl Georg and Denise Liversidge t/as Simul-8r Xtreem v Stephen Andrew Walsh and Ors [2005] NSWSC 308 Techtronic Industries Pty Limited v Mitre 10 Australia Limited [2008] NSWSC 740
PARTIES:	ERG Transit Systems Ltd (Plaintiff) Keane Australia Micropayment Consortium Pty Limited (Defendant)
FILE NUMBER(S):	SC 50160/09; 50161/09
COUNSEL:	Mr B Coles QC, Mr Walsh (Plaintiff) Mr I Pike (Defendant)
SOLICITORS:	Church & Grace (Plaintiff) Mallesons Stephen Jaques (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

Einstein J

Wednesday 2 December 2009

50160/09 ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Ltd
50161/09 ERG Transit Systems Ltd v Keane Australia Micropayment Consortium Pty Ltd

JUDGMENT ON COSTS

1 By paragraph 2 of the Notices of Motion flied by the Defendant (“Kamco”) in these proceedings on 15 October 2009, Kamco sought an order that the plaintiff (“ERG Transit”) pay Kamco’s costs of each motion.

2 On 27 November 2009, the Court ordered that both these proceedings be transferred to the Supreme Court of Victoria: see Orders 1 and 2 [24], and reserved the question of costs.

3 For the reasons set out below, ERG Transit is to be ordered to pay Kamco’s costs of the motion. There is no special principle applicable to costs in a cross-vesting application. Costs should therefore follow the event.

There are no special principles

4 There are no special principles relating to an award of costs in applications made pursuant to s.5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (“cross-vesting applications”).

5 The “usual” practice of the Court is to order that the unsuccessful party in cross-vesting applications pay the successful party’s costs: see Darryl Georg and Denise Liversidge t/as Simul-8r Xtreem v Stephen Andrew Walsh and Ors [2005] NSWSC 308 (29 March 2005) [21] - Einstein J: “the proper order as to costs is simply to order the applicant/defendants pay the plaintiff’s costs of the motion on the usual basis and I so order”; see also Techtronic Industries Pty Limited v Mitre 10 Australia Limited [2008] NSWSC 740 (11 July 2008) [16] - Einstein J: “The principled exercise of the discretion as to costs is to order that the defendant pay the plaintiff’s costs of the motion”.

6 This practice simply reflects the more general rule that costs follow the event (rule 42.1 Uniform Civil Procedure Rules 2005).

Application to the present case

7 The present case was a clear case for transfer to Victoria.

8 In its 27 November 2009 judgment in these proceedings, the Court “reached the clear conclusion” that it was in the interests of justice that the proceedings be transferred to Victoria. Further, the Court held that ERG Transit’s main submission was “misconceived”.

9 Kamco’s solicitors wrote to ERG Transit’s solicitors on two occasions in September 2009 requesting that they advise on what basis the proceedings should remain in New South Wales. No proper response was given. The solicitors for ERG Transit simply asserted that it was in the interests of justice that the Supreme Court of New South Wales hear and determine the disputes.

Orders

10 ERG Transit is to pay Kamco’s costs of and occasioned by the notices of motion seeking the cross-vesting orders in each set of proceedings.

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