In the matter of Sirrah Pty Ltd (in prov liq)

[2021] NSWSC 400

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Sirrah Pty Ltd (in prov liq) [2021] NSWSC 400

Hearing dates:

22 February 2021

Date of orders:

20 April 2021

Decision date:

20 April 2021

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Second-Fourth Defendants pay 75% of the Plaintiff’s costs of application for leave to read affidavits served out of time.

Catchwords:

COSTS - Where application made for leave to read affidavits out of time – where application not pressed in respect of some affidavits and parts of other affidavits.

Legislation Cited:

- Civil Procedure Act 2005 (NSW), s 98

- Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

- Chand v Azurra Pty Ltd (in liq) (2011) 82 ACSR 383; [2011] NSWCA 58

Category:

Costs

Parties:

Gregory Thomas Harris (First Plaintiff)
Monica Mary Brown (Second Plaintiff)
Sirrah Pty Limited (First Defendant)
William Francis Harris (Second Defendant)
Michelle Joy Harris (Third Defendant)
Harris Health Care Pty Limited (Fourth Defendant)

Representation:

Counsel:
S A Wells/J Anderson (Plaintiffs)
J Tobin (First Defendant)
A F Fernon SC/E A Walker (Second - Fourth Defendants)

Solicitors:
Lloyd & Lloyd (Plaintiffs)
Watson Mangioni (First Defendant)
Yates Beaggi (Second - Fourth Defendants)

File Number(s):

2017/383731 (013)

Judgment

1. I have been asked to determine, in Chambers, a question as to costs in relation to an application for leave to rely on several affidavits filed and served by the Second – Fourth Defendants in these proceedings out of time. On 24 February 2021, I made orders granting leave to the Second – Fourth Defendants in these proceedings to rely on several affidavits served out of time. Those affidavits were some of the larger number of affidavits for which such leave was originally sought, and leave was granted after the Second – Fourth Defendants identified a significant amount of irrelevant material in those affidavits that would not be read.

2. The Plaintiffs submit that the Court should order that the Second – Fourth Defendants pay 75% of their costs of the Notice of Motion seeking leave to rely on the affidavits out of time. The Plaintiffs point out that it was necessary for the Second – Fourth Defendants to make the application for leave as they were in default of the Court’s order made on 22 October 2020, as to the date on which their evidence was to be served, which had been made after allowing for the time which the Second – Fourth Defendants had indicated was required to serve such evidence. The Plaintiffs also rightly submit that, during the hearing of the application, substantial portions of the lay evidence that was the subject of the application was not pressed, a claim for leave to lead expert evidence out of time was abandoned; and the Plaintiffs indicated that further evidence for which they had originally sought leave would not be read. The Plaintiffs also submit that the Second – Fourth Defendants required leave and the indulgence of the Court to file and serve the evidence.

3. The Second – Fourth Defendants respond that they made “all appropriate concessions” on the application in relation to the parts of the affidavits to be read and the issues to be tried were clarified as a result of the application. That proposition appears to be another way of saying that, by the time the application was determined, the Second – Fourth Defendants had abandoned those aspects of it which could not reasonably have been sustained. The Second – Fourth Defendants also submit that they enjoyed “some measure of success” on their application and that the appropriate costs order is that costs be the parties’ costs in the cause.

4. Turning now to the applicable principles, s 98 of the Civil Procedure Act 2005 (NSW) provides for orders for costs. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides that, generally, costs will follow the event. The case law recognises that a party which seeks a dispensation from the Court will generally be required to pay the costs of other parties which need to be notified of the claim and another party who acts reasonably in that regard is usually entitled to his or her costs: Chand v Azurra Pty Ltd (in liq) (2011) 82 ACSR 383; [2011] NSWCA 58. Here, the Second – Fourth Defendants’ application for leave initially extended to several affidavits which had no apparent relevance to the matters in issue in the proceedings, for which the application was abandoned; and to other affidavits, significant parts of which did not appear to be relevant and which they then indicated would not be read. In those circumstances, it seems to me that the Plaintiffs reasonably did not consent to the grant of leave in the form which it was originally sought extending to a significant amount of irrelevant evidence, and there is no reason to depart from the usual position that the Second – Fourth Defendants, having put the Plaintiffs to the costs of participating in this application by their failure to lead evidence within time, exacerbated by their bringing an application which had to be significantly narrowed in order to succeed, must reasonably pay the Plaintiffs’ costs of that application. The costs payable will be discounted to 75% of the costs on the basis that the Plaintiffs accept such a discount.

5. I therefore make the orders sought by the Plaintiffs, that the Second – Fourth Defendants pay 75% of the Plaintiffs’ costs of and incidental to the motion filed on 8 February 2021, including the hearing of that motion, as agreed or as assessed.

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