In the matter of Orix Australia Corporation Limited

[2021] NSWSC 17

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Orix Australia Corporation Limited [2021] NSWSC 17

Hearing dates:

On the papers – last submissions 16 December 2020

Decision date:

20 January 2021

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Costs of and incidental to the hearing of the Interlocutory Process on 26 November 2020 be costs in the cause.

Catchwords:

COSTS – Bases of quantification – mixed result in interlocutory application

Cases Cited:

- Abbas v Commissioner of Police [2020] NSWSC 403

- McGuirk v University of New South Wales [2011] NSWSC 361

- Mudgee Dolomite and Lime Pty Ltd [2020] NSWSC 1675

- Re Courtesy Real Estate (NSW) Pty Ltd (2013) 96 ACSR 593; [2013] NSWSC 1666

- Short v Crawley (No 40) [2008] NSWSC 1302

Category:

Costs

Parties:

Orix Australia Corporation Limited (Plaintiff)
John Joseph Carter (First Defendant)
George Georgiou (Second Defendant)

Representation:

Counsel:
P Bolster/A Zheng (Plaintiff/Respondent)
M Ashhurst SC/D Mackay (First Defendant/Applicant)

Solicitors:
Clayton Utz (Plaintiff/Respondent)
Diamond Conway (First Defendant)

File Number(s):

2020/174863

Judgment

1. On 26 November 2020, I heard an interlocutory application brought by the First Defendant, Mr Carter, seeking to strike out numerous paragraphs of the Statement of Claim filed by the Plaintiff, Orix Australia Corporation Limited (“Orix”), under r 14.28 of the Uniform Civil Procedure Rules. By my Judgment delivered on 9 December 2020 ([2020] NSWSC 1770) in respect of that application, I observed (at [33]) that:

:”For these reasons, the strike out application fails other than in respect of paragraphs 57, 73, 110(a)-(b), 172(a)-(c) and 194 of the Statement of Claim, which should be struck out by reason of the use of the term “illegitimate”, with leave to replead. Any amended pleading should also delete the entirely unhelpful introductory phrase “in the premises” to refer to previous paragraphs and, in each case it and similar phrases appear, refer to the particular paragraphs to which reference is intended. I will hear the parties, when the matter is next listed for directions on 14 December 2020, as to the time which will be required to file an Amended Statement of Claim and as to costs where the parties have had a mixed result.”

2. Each of Orix and Mr Carter have now made written submissions as to the costs of that application, and there is no real dispute as to the applicable principles. Mr Mackay, who appears for Mr Carter, rightly observes that costs are within the Court’s discretion, pursuant to s 98 of the Civil Procedure Act 2005 (NSW); that rule 42.1 of the Uniform Civil Procedure Rules 2005 (“UCPR”) provides that costs should follow the event; and that UCPR r 42.7 provides that, unless the Court otherwise orders, the costs of an interlocutory application are to be paid and dealt with in the same way as the general costs of the proceedings. Mr Mackay also draws attention to my observation in Re Courtesy Real Estate (NSW) Pty Ltd (2013) 96 ACSR 593; [2013] NSWSC 1666 at [30] that, where the parties had a mixed result in an interlocutory application, that would properly be reflected by an order that costs be costs in the cause.

3. Mr Bolster, who appears for Orix, referred to McGuirk v University of New South Wales [2011] NSWSC 361 where Johnson J observed that:

“The discretion as to costs is to be exercised having regard to the circumstances of the particular case, with a view to reaching a just outcome on the question of costs.”

He also referred to my observation in Mudgee Dolomite and Lime Pty Ltd [2020] NSWSC 1675 at [8], where I referred to Short v Crawley (No 40) [2008] NSWSC 1302 at [25]-[33], that costs orders can “accommodate the extent to which a successful party has not succeeded on all issues raised”. Mr Bolster also pointed out that the Court can have regard to the time taken in dealing with particular issues and referred to Abbas v Commissioner of Police [2020] NSWSC 403, where a plaintiff who was unsuccessful in seeking to uphold a claim for legal professional privilege in respect of 110 out of 118 documents was ordered to pay 90% of the defendant’s costs.

4. Mr Bolster submits that Mr Carter had limited success on the application and that he succeeded in striking out six of the 46 challenged paragraphs in the Statement of Claim, all of which concerned the single issue of the use of the word “illegitimate” and other remaining issues were determined favourably to Orix. Mr Bolster submits that Mr Carter should be ordered to pay Orix’s costs of the application for several reasons, including that other issues took up more of the time required in written submissions and oral submissions than the issue as to the use of the word “illegitimate” in the pleading. He submits that a costs order should be made in favour of Orix because it was “far and away the more successful party on the application”. He submits that, if the Court were minded to fix a percentage of costs, no more than 10% of costs were referable to the issues on which Mr Carter succeeded, and that nothing would warrant a costs order being made in Mr Carter’s favour. Mr Mackay responds that an order for costs in the cause should be made where the parties have had a mixed result, and he also points to several concessions made by Orix, in the course of the application, as to aspects of the pleading.

5. It seems to me that the parties here achieved a mixed result; the issue as to the use of the term “illegitimate” in several paragraphs of the Statement of Claim was of some significance in the articulation of the case that Mr Carter had to meet, so that his success as to that issue was of some significance to him; and the result of the application is not usefully assessed by an attempt to estimate the time spent on particular issues in oral or written submissions.. For these reasons, I make the order as to costs sought by Mr Carter, that the costs of and incidental to the hearing of the Interlocutory Process on 26 November 2020 be costs in the cause.

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Decision last updated: 31 January 2021