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 2009JURISDICTION: Equity Division
Commercial ListJUDGMENT 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 2005CATEGORY: 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 740PARTIES: 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.
- AGLC
- 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
- Case
- [2009] NSWSC 1334
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the respondent was liable to pay the costs of the cross-vesting application under the provisions of the Cross-vesting Act and the Corporations Act. The court had to consider the statutory provisions governing costs in cross-vesting applications and whether the respondent's opposition to the application was reasonable and justified. Additionally, the court needed to determine whether there were any exceptional circumstances that warranted the respondent bearing the costs of the application.
The court found that the statutory provisions governing costs in cross-vesting applications were clear and unambiguous. The court held that the respondent was not liable to pay the costs of the cross-vesting application. The court found that the respondent's opposition to the application was reasonable and justified, as it was based on concerns about the appellant's ability to pay the costs of the application. The court also found that there were no exceptional circumstances that warranted the respondent bearing the costs of the application. Therefore, the court dismissed the appellant's claim for costs.
The court's decision in this case provides important guidance on the principles governing costs in cross-vesting applications under the Cross-vesting Act and the Corporations Act. The court's finding that the respondent was not liable to pay the costs of the cross-vesting application reinforces the importance of considering the reasonableness and justification of a party's opposition to such applications. The decision also highlights the need for courts to carefully consider the relevant statutory provisions and any exceptional circumstances before ordering a party to pay the costs of a cross-vesting application.
Orders
Orders of the court
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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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