G & H Australia Pty Ltd ACN 634 181 810 v Oladeinde

[2023] NSWSC 1006

Supreme Court

New South Wales

Medium Neutral Citation:	G & H Australia Pty Ltd ACN 634 181 810 v Oladeinde [2023] NSWSC 1006
Hearing dates:	On the papers; submissions received 11 and 18 August 2023
Date of orders:	22 August 2023
Decision date:	22 August 2023
Jurisdiction:	Equity
Before:	Stevenson J
Decision:	Defendant to pay the plaintiff’s costs
Catchwords:	COSTS – defendant agreed at last minute to orders as sought by the plaintiff – whether costs should follow the event
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Category:	Costs
Parties:	G & H Australia Pty Ltd ACN 634 181 810 (Plaintiff) Abidemi Timi Oladeinde (Defendant)
Representation:	Counsel: A A Wilson (Plaintiff) Solicitors: Hicksons (Plaintiff) Defendant (self-represented)
File Number(s):	2022/333555

JUDGMENT

1. The plaintiff, G & H Australia Pty Ltd, commenced these proceedings on 7 November 2022 against its former employee, Mr Abidemi Oladeinde.

2. G & H operates a recruitment consultancy within the architectural engineering and construction industries.

3. Mr Oladeinde was employed by G & H as a recruitment consultant. His employment contract included a restraint of trade and a prohibition on the misuse of confidential information.

4. Mr Oladeinde’s employment ceased on 28 October 2022.

5. On 1 November 2022, G & H discovered LinkedIn messages sent and received by Mr Oladeinde which G & H alleged indicated that Mr Oladeinde had acted in breach of the restraints and prohibitions in his contract of employment.

6. On 7 November 2022, Meek J granted an injunction on an ex parte basis to enforce the restraint and prohibition.

7. On 9 November 2022, Mr Oladeinde appeared, by a solicitor, and did not challenge the injunction then in effect. In fact, at no stage did Mr Oladeinde challenge the injunction.

8. The proceedings were listed for hearing on 10 August 2023.

9. Immediately prior to the hearing, Mr Oladeinde consented to orders in terms of those sought in G & H’s summons.

10. I am now dealing with the question of costs.

11. As Mr Oladeinde has consented to the precise orders sought by G & H in its summons, and has at no stage during the proceedings challenged the making of those orders, the prima facie position is that costs follow the event[1] and that Mr Oladeinde should pay G & H’s costs of the proceedings.

    1. Uniform Civil Procedure Rules 2005 (NSW) r 42.1.

12. In response to G & H’s submissions to that effect, Mr Oladeinde, who since April 2023 has not been represented in the proceedings, wrote:

“I respectfully acknowledge the submission of costs made by the plaintiff. I request the court’s consideration in assessing the costs in a fair and balanced manner.

I understand the principle that the successful party is entitled to recover reasonable costs incurred during the course of the legal proceedings. However, I urge the court to consider certain aspects that could impact the final determination of costs in this matter.

Firstly, I would like to highlight that as the defendant, I was committed to upholding the principles of justice and participated in these proceedings with the utmost sincerity. My intention was never to prolong the litigation process unnecessarily. Throughout the case, I cooperated with the court’s directions and engaged in the discovery process, providing all required documentation and adhering to the established timeline.

Furthermore, I acted in a self-represented capacity for a considerable portion of the proceedings due to financial constraints. This personal decision was made with the intention of advancing the matter in a cost-effective manner. Regrettably, my limited legal expertise did pose certain challenges, which may have inadvertently contributed to certain delays or procedural misunderstandings.

Considering these circumstances, I kindly request the court’s discretion in assessing the costs associated with this case. While the plaintiff is entitled to recover reasonable costs, I humbly request the court to consider the following factors.” (Emphasis added.)

13. The passages I have emphasised show that Mr Oladeinde accepts that G & H is entitled to its costs of the proceedings.

14. The factors that Mr Oladeinde sought to raise concerned “reasonableness of costs”, “financial hardship”, “good faith attempt at resolution” and “settlement negotiation”.

15. Mr Oladeinde seemed to think that the Court could, at this stage, engage in some kind of negotiation process with the parties as to the quantum of costs and other like matters. Were a costs order to be made, the reasonableness of the amount of those costs would in fact be dealt with by a costs assessor during the assessment process, assuming agreement could not be reached between the parties about that matter. The Court would have no further role to play.

16. Mr Oladeinde also provided what purports to be an affidavit made by him (although it is not in proper form) in which he has sought to agitate matters that, had orders not been made disposing of the proceedings, had potential relevance to the merits of G & H’s claim.

17. It is too late for Mr Oladeinde to raise such matters, the resolution of which would, in any event, involve the Court endeavouring to try a hypothetical case between the parties; a course that the Court will not follow. [2]

    2. See, for example, Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 at 624 (McHugh J).

18. The appropriate order for the Court to make, as Mr Oladeinde appears to understand, is that he pay G & H’s costs of the proceedings.

19. My order is that the defendant pay the plaintiff’s costs of the proceedings, as assessed or agreed.

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Endnotes

Decision last updated: 22 August 2023