In the matter of SecureNet Technologies Pty Ltd

[2022] NSWSC 231

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of SecureNet Technologies Pty Ltd [2022] NSWSC 231

Hearing dates:

8 and 9 February 2022

Date of orders:

7 March 2022

Decision date:

07 March 2022

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Orders made with no order as to costs

Catchwords:

COSTS – determination of whether to apportion costs – whether to make no order as to costs.

Cases Cited:

-Jones v Trad (No 3) [2013] NSWCA 463

- Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 2) [2019] NSWCA 19

- Re Cooperbrown Pty Ltd [2019] NSWSC 152

- Real Estate Property Management Pty Ltd v WaterCorp Investments Pty Ltd [2018] NSWCA 194

- Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 671

- Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40

Category:

Procedural rulings

Parties:

SecureNet Technologies Pty Ltd (First Plaintiff)
SecureNet Monitoring Services Pty Ltd (Second Plaintiff)
Andrew Wilson (Defendant)

Representation:

Solicitors:
Henry William (Plaintiffs)
Stevens Vuaran Lawyers (Defendant)

File Number(s):

2021/9443

Judgment

1. On 8 and 9 February 2022, I heard proceedings by which the Plaintiffs, SecureNet Technologies Pty Ltd and SecureNet Monitoring Services Pty Ltd sought certain relief against the Defendant, Mr Andrew Wilson. I delivered judgment on 15 February 2022 ([2022] NSWSC 118) (“Earlier Judgment”) and observed, in relation to orders and costs, that:

“My preliminary view is that each party has had some success and some failure in these proceedings and there should be no order as to costs, although I will allow the parties an opportunity to make submissions in that respect. I direct the parties to submit agreed orders within 14 days to give effect to this judgment and as to costs or, if there is no agreement, their respective draft orders and submissions not exceeding six pages in one and a half spacing.”

2. By a further judgment delivered on 28 February 2022, I dismissed an application by the Plaintiffs to further amend their Originating Process to seek additional relief which was not previously sought in the proceedings and was not necessary to resolve the matters in dispute between the parties.

3. The parties largely reached agreement as to the orders which should be made to give effect to the Earlier Judgment, except in relation to costs. The Plaintiffs supported the order foreshadowed in the Earlier Judgment, that there should be no order as to costs. Mr Wilson, in further submissions as to orders, accepted that each party had had some success and some failure in the proceedings. However, Mr Wilson submitted that the issues in which he succeeded were both more numerous and more significant than those on which the Plaintiffs succeeded and he failed, including by reference to the commercial significance of the matters on which the respective parties had succeeded and failed.

4. Mr Wilson also referred to case law as to the circumstances in which the Court may make costs orders reflecting a mixed outcome in the proceedings, while recognising the observation of Nicholas J in Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 671 that the Court should not adopt a “scoreboard approach” to costs. He referred, inter alia, to my summary of the applicable principles in Re Cooperbrown Pty Ltd [2019] NSWSC 1521 at [7]ff. I there referred, inter alia, to the fact that apportionment of the costs is not the norm and that, unless a particular issue or group of issues is clearly dominant or separable, it would ordinarily be appropriate to award the successful party its costs without attempting to differentiate between issues on which it was successful and those on which it was not: Jones v Trad (No 3) [2013] NSWCA 463 at [18]; Real Estate Property Management Pty Ltd v WaterCorp Investments Pty Ltd [2018] NSWCA 194 at [31]. I also there referred to Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [6]–[7] and to Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 2) [2019] NSWCA 19 at [5], where the Court of Appeal in turn noted that:

“There is no issue as to the relevant principles. The discretion under Civil Procedure Act 2005 (NSW), s 98 is ordinarily exercised by requiring that “costs follow the event”: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. This default position was historically understood to mean (so as to preserve the practice, where any issue was tried with a jury, that those costs followed the outcome of that event) “that the costs of the several issues went to the party who succeeded on them respectively, while the general costs went to him who on the whole succeeded on the action” … But more recent authority favours the award of the costs of proceedings to the party successful overall without any differentiation as to issues, at least “unless a particular issue or group of issues is clearly dominant or separable” … And the costs arising from such issues have more readily been apportioned where the party successful overall is the plaintiff ...” [citations omitted]

5. I accept that, in some cases, a successful party may recover all of its costs without deduction for issues on which it failed. However, I do not accept that Mr Wilson can fairly be characterised as having had success in the proceedings, given the mixed result, I also do not accept Mr Wilson’s submission that, in any overall balancing process, he enjoyed the “better side” of the mixed events arising from the Earlier Judgment, and it is not possible or appropriate to assess the commercial impact of the orders that are to be made made within any ongoing disputes between the parties and their ongoing proceedings in the United States. It seems to me that there is here no basis to apportion the costs to particular issues, still less to reach the result for which Mr Wilson contends, that the Plaintiffs should pay 75% of his costs as assessed or agreed.

6. Accordingly, I have made the orders that were agreed between the parties, and a further order as foreshadowed in the Earlier Judgment, that there be no order as to the costs of the proceedings.

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