Hotwork Australia Pty Ltd v Tomkins (No. 2) - [2020] NSWSC 667

Supreme Court

New South Wales

Medium Neutral Citation: Hotwork Australia Pty Ltd v Tomkins (No. 2) [2020] NSWSC 667
Hearing dates: On the papers
Date of orders: 29 May 2020
Decision date: 29 May 2020
Jurisdiction: Equity
Before: Henry J
Decision:
The plaintiff to pay the defendants’ costs of and incidental to the plaintiff’s amended notice of motion filed on 20 April 2020.

Catchwords: COSTS – Costs of application for interlocutory relief – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.7
Cases Cited: Ausino International Pty Limited v Apex Sports Pty Limited [2006] NSWSC 1119
Baller Industries Pty Ltd v Mero Mero Leasing Pty Ltd [2019] NSWSC 1067
Devereaux Holdings Pty Ltd v Pelsart Resources NL (No 2) (Supreme Court (NSW), 24 July 1985, unrep)
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142
Hotwork Australia Pty Ltd v Tomkins [2020] NSWSC 494.
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Singtel Optus Pty Ltd v Vodafone Pty Ltd (No 2) [2011] FCA 260
Westpoint Finance Pty Limited v Chocolate Factory Apartments Limited [2002] NSWCA 287
Texts Cited: Nil
Category: Costs
Parties: Hotwork Australia Pty Ltd (Plaintiff)
Jason Edley Tomkins (First defendant)
Heat Applications Global Pty Ltd (Second defendant)
Heat Applications India PVT Ltd (Third defendant)
Representation:
Counsel:
G Carolan (Plaintiff)
N Bender (First and second defendants)
Solicitors:
Heard McEwan Legal (Plaintiff)
Allen & Overy (First and second defendants)

File Number(s): 2020/101204
Publication restriction: Nil

JUDGMENT

On 7 May 2020, I gave judgment on the plaintiff’s interlocutory application seeking to restrain the defendants from using the plaintiff’s confidential information and to restrain the first defendant from soliciting and dealing with the plaintiff’s clients, employees and sub-contractors: Hotwork Australia Pty Ltd v Tomkins [2020] NSWSC 494. These reasons deal with the costs of that application and assume familiarity with the judgment.
In the judgment, I indicated an initial view that the costs of the plaintiff’s application should be costs in the cause, but deferred entry of that order pending hearing submissions from the parties as to any alternative costs order: Hotwork Australia Pty Ltd v Tomkins [2020] NSWSC 494 at [124].
The defendants seek an order that the plaintiff pays their costs of and incidental to the application. The parties are content for me to determine the issue of costs on the papers and have provided written submissions dated 15 May 2020. They do not rely on any additional evidence.
Before dealing with the submissions of the parties, it is appropriate to summarise the nature of the plaintiff’s application and the outcome.
The plaintiff’s claims for interlocutory relief and orders relating to the use of its confidential information were, in large part, resolved between the parties. Prior to the hearing, the defendants had proffered an undertaking to the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 667
Decision Date: 29 May 2020

CaseChat Overview and Summary

The case of Hotwork Australia Pty Ltd v Tomkins (No. 2) involved a dispute between a company and an individual over issues related to interlocutory relief and associated costs. The matter was heard in the Supreme Court of New South Wales. The company sought relief from the individual for alleged breaches of contractual obligations, specifically concerning the costs incurred in pursuing interlocutory relief. The individual contested the application, arguing that the costs were not properly justified and should not be awarded.

The primary legal issue before the court was whether the costs associated with the application for interlocutory relief should be awarded to the applicant. The court had to consider the principles governing the award of costs in such circumstances, particularly in cases where no significant legal principle was in dispute. The court also had to assess the reasonableness of the costs claimed and whether they were proportionate to the relief sought.

The Supreme Court of New South Wales found that there was no significant issue of principle involved in the matter, and thus the costs should be assessed in accordance with the standard principles governing the award of costs for interlocutory applications. The court concluded that the costs claimed were reasonable and proportionate to the relief sought, and therefore, the company was entitled to recover the costs from the individual. The court emphasised that the principles guiding the award of costs in such cases should be applied pragmatically, without creating unnecessary disputes over principle where none existed.

The final orders of the court confirmed that the individual was liable to pay the costs of the application for interlocutory relief as claimed by the company, subject to any reasonable objections the individual might have raised regarding specific items. The court directed that the matter be returned to the Registrar for the assessment of the detailed costs.

Orders