Kenny v Ebling Pty Ltd

Kenny sought to preserve evidence in anticipation of bringing a claim against Ebling Pty Ltd. The dispute came before the court due to Kenny's application for an interim preservation order, including the extension of a caveat and an injunction. Kenny applied ex parte, but the matter was subsequently called when Ebling appeared in court. Kenny then announced that he would not proceed with the application and would withdraw it, deciding not to file the summons. Ebling sought costs from Kenny, arguing that the court should have ordered Kenny to file the summons as part of the proceedings.

The court considered whether it was appropriate to compel Kenny to file the summons, even though Kenny had withdrawn the application. The court examined the principles governing the imposition of costs in such circumstances, including the conduct of the parties and the reasons for the withdrawal of the application. The court also considered the effect of the Supreme Court Rules on interim preservation orders and the discretion of the court in managing proceedings.

The court concluded that, while Kenny's decision to withdraw the application was within his rights, the circumstances justified an order for costs. The court found that Kenny's application was vexatious, as it was made without proper consideration of the potential consequences and without a reasonable prospect of success. The court also noted that Kenny's conduct had caused Ebling to incur unnecessary costs and expenses. Accordingly, the court ordered Kenny to pay Ebling's costs of the proceedings, including the costs of appearing on the notice of motion.