Marlinspike Debt Acquisitions Pty Ltd v The Undone Pty Ltd (No. 2)

In this matter, Marlinspike Debt Acquisitions Pty Ltd brought proceedings against The Undone Pty Ltd in the Local Court. The dispute centred on the recovery of a debt. The matter was subsequently transferred to the Supreme Court of New South Wales, where the plaintiff sought a specified gross sum costs order. The defendant argued that the judge who had presided over the case should be recused on the grounds of apprehended bias. This argument was based on the fact that the judge had previously served on the Legal Profession Admission Board, which had excluded the defendant from its legal course. The defendant also sought release from an undertaking as to costs given under UCPR r 7.1.

The court had to decide whether the judge should be recused due to a reasonable apprehension of bias. It was necessary to consider the nature of the judge's prior involvement with the defendant and whether this involvement could give rise to such an apprehension. The court also had to consider the appropriate quantum of costs in the case, particularly whether a specified gross sum costs order should be made given the circumstances. Furthermore, the court needed to determine if there were any changes in circumstances that would warrant the release of the defendant from the undertaking as to costs.

The court found that there was no reasonable apprehension of bias on the part of the judge. The prior involvement of the judge with the defendant did not give rise to such an apprehension. Regarding the costs, the court held that a specified gross sum costs order was appropriate given the nature of the proceedings, the small sum claimed, and the conduct of the defendant. The court found that the defendant's conduct was such that it warranted the imposition of higher costs. Finally, the court found that there had been no change in circumstances since the undertaking was given, and therefore, the defendant was not entitled to be released from the undertaking as to costs.