Kwiatkowski v Plum Pictures Limited

The proceedings were brought by the plaintiff against the defendants for alleged breaches of contract and misleading and deceptive conduct. The plaintiff sought damages for the loss of an opportunity to work on a film. The defendants made an application for costs under section 73 of the Civil Procedure Act. The notice of motion was originally filed under section 73, but the plaintiff later moved to have it converted to a section 78 application. The court was required to decide whether the notice of motion was appropriately filed under section 73 and whether the second defendant's undertaking not to enforce costs unless the plaintiff attempts to recommence proceedings was sufficient.

The court held that the notice of motion was appropriately filed under section 73 as there was no dispute regarding the promise or settlement of interlocutory proceedings within the principal proceedings. The court also held that the second defendant's undertaking not to enforce costs unless the plaintiff attempts to recommence proceedings was sufficient. The court noted that the undertaking provided an undertaking to the court that the second defendant would not enforce costs unless the plaintiff attempted to recommence proceedings, and that this was sufficient to prevent the plaintiff from being penalised for the costs of the proceedings. The court also noted that the second defendant's conduct in making the application for costs was not vexatious or oppressive.

The court ordered that the plaintiff pay the defendants' costs of the proceeding up to the hearing of the motion, and that the second defendant's undertaking not to enforce costs unless the plaintiff attempts to recommence proceedings was sufficient. The court also ordered that the plaintiff pay the defendants' costs of the proceeding on the standard basis.