Keynes Capital Global Limited v Guo (No 2)

Keynes Capital Global Limited and others (the applicants) sought orders for the costs of an unsuccessful application for leave to appeal concerning a discovery dispute. The application for leave to appeal had been dismissed by the Court of Appeal of New South Wales. The primary question before the Court was whether the costs of that unsuccessful application should be ordered to be paid forthwith, and if so, under what criteria.

The Court was required to determine whether an "order otherwise" under rule 42.7 of the Uniform Civil Procedure Rules 2005 (NSW) was necessary to justify ordering the costs of the unsuccessful application for leave to appeal to be paid forthwith. This rule generally provides that costs are taxed and paid after the final judgment or order in the proceedings.

The Court reasoned that the unsuccessful application for leave to appeal was a distinct proceeding from the main action. It held that the costs of such an application, particularly where it was dismissed, were ordinarily payable forthwith. The Court noted that there was no need for a specific "order otherwise" under rule 42.7 because the rule itself contemplated that costs could be ordered to be paid forthwith in circumstances such as these. The Court also ordered that the costs of a separate notice of motion dated 6 October 2020 be paid forthwith.

The Court ordered that the costs the subject of its order of 18 August 2020 be payable forthwith. It further ordered that the applicants pay the respondent’s costs of the notice of motion dated 6 October 2020, with such costs also to be payable forthwith.