In the matter of Anna Bay Resorts Pty Ltd

[2021] NSWSC 209

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Anna Bay Resorts Pty Ltd [2021] NSWSC 209

Hearing dates:

On the papers

Date of orders:

10 March 2021

Decision date:

10 March 2021

Jurisdiction:

Equity - Corporations List

Before:

Williams J

Decision:

Order that the plaintiffs pay the defendants’ costs of the interlocutory process on the ordinary basis.

Catchwords:

COSTS – interlocutory application costs to be paid on an ordinary basis – no issue of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW), r 42.7, Part 42

Cases Cited:

Emu Group Pty Ltd (in liq) (No. 2) [2020] NSWSC 1248

Petar v Macedonian Orthodox Community Church St Petka Inc (No. 2) [2007] NSWCA 142

Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 388

Category:

Costs

Parties:

Timesgarden Pty Limited (First Plaintiff)
Wilson Hu (Second Plaintiff)
Frank Shi (First Defendant)
Wisemans Group Pty Limited (Second Defendant)
Anna Bay Resort Pty Limited (Third Plaintiff)

Representation:

Counsel:
Mr G Campbell (Plaintiffs)
Mr M Rozdal (solicitor) (Defendants)

Solicitors:
WB Legal (Plaintiffs)
Keypoint Law (Defendants)

File Number(s):

2020/321040

Publication restriction:

N/A

Judgment

1. On 25 February 2021, I dismissed the plaintiffs’ urgent application for an interlocutory injunction restraining the defendants from selling certain land owned by the third defendant at an auction that appeared to be set to be conducted or concluded (the evidence was ambiguous) later that day. I dismissed the application on the basis that the plaintiffs had failed to demonstrate a serious question to be tried on either of the two unpleaded claims that the plaintiffs formulated in support of the application for the injunction.

2. Owing to the urgency with which the final hearing was conducted and the need to deliver an oral judgment immediately after the conclusion of that hearing, there was no time to hear the parties in relation to costs at the conclusion of the hearing. I reserved the question of costs and made directions to facilitate the determination of costs on the papers after receipt of written submissions from the parties.

3. The defendants made written submissions on 1 March 2021. They seek an order that the plaintiffs pay their costs of the application for the interlocutory injunction on the ordinary basis or, alternatively, an order that the defendants’ costs of that application be the defendants’ costs in the cause. The defendants do not seek an order that their costs be paid forthwith.

4. The plaintiffs’ solicitors advised my Associate on 5 March 2021 that the plaintiffs did not wish to make any submissions in response to the defendants’ submissions.

5. The plaintiffs’ application for interlocutory relief stood apart from their claims in the proceedings, in that the application was based on claims formulated in submissions that had not yet been pleaded in these proceedings (and have still not been pleaded). In those circumstances, the application was a discrete application, the costs incurred in relation to it are separately identifiable and those costs are unlikely to be of benefit in relation to the substantive proceedings. For those reasons, it is my opinion that the appropriate exercise of the discretion under s 98 of the Civil Procedure Act 2005 (NSW) and Part 42 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) is to depart from the starting point established by UCPR r 42.7 and order the plaintiffs to pay the defendants’ costs of their unsuccessful application: In the matter of Emu Group Pty Ltd (in liq) (No. 2) [2020] NSWSC 1248 at [14]-[16]; Petar v Macedonian Orthodox Community Church St Petka Inc (No. 2) [2007] NSWCA 142 at [16]-[32]; Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 388 at [41].

6. For those reasons, I make the following order and notation:

1. Order that the plaintiffs pay the defendants’ costs of the interlocutory process filed by the plaintiffs on 24 February 2021 and heard on 25 February 2021 on the ordinary basis, in an amount agreed or assessed.

2. Note that the costs referred to in order 1 above do not become payable until the conclusion of these proceedings.

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