Metroll SA Pty Ltd v Powerpark Systems Pty Ltd (No 2)

[2021] NSWDC 184

District Court

New South Wales

Medium Neutral Citation:

Metroll SA Pty Ltd v Powerpark Systems Pty Ltd (No 2) [2021] NSWDC 184

Hearing dates:

On the papers

Date of orders:

14 May 2021

Decision date:

14 May 2021

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

The second defendant is to pay the plaintiff's costs of the proceedings against him as agreed or assessed.

Catchwords:

COSTS – whether a limiting order should be made as to the plaintiff's costs of the proceedings – problem with pagination of the court bundle - general exercise of the court's discretion as to costs

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Metroll SA Pty Ltd v Powerpark Systems Pty Ltd [2021] NSWDC 102

Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164

Category:

Costs

Parties:

Metroll SA Pty Ltd (Plaintiff)
Powerpark Systems Pty Ltd (in Liquidation) (First Defendant)
Jeremy Richard Rowe (Second Defendant)

Representation:

Counsel:
H Woods (Plaintiff)
No appearance for first defendant
R D Marshall SC and J Byrne (Second Defendant)

Solicitors:
Kanji & Co Solicitors (Plaintiff)
Keypoint Law (Second Defendant)

File Number(s):

2019/00133756

Publication restriction:

Nil

Judgment

1. The court handed down its reasons for decision in relation to the final hearing of this matter on 31 March 2021: Metroll SA Pty Ltd v Powerpark Systems Pty Ltd [2021] NSWDC 102. An issue has arisen in relation to the appropriate order as to costs to be made in the proceedings.

2. These reasons for decision assume a familiarity of the reader with the primary judgment handed down on 31 March 2021. The case related to whether the second defendant director was liable pursuant to an alleged guarantee for goods said to have been ordered on behalf of the first defendant from the plaintiff. There was a dispute as to the identity of the contracting parties and whether the guarantee provided by the second defendant director related to the liability of the first defendant in the proceedings.

3. On 31 March 2021, the court made the following order:

“(4)  The parties should attempt to agree an appropriate costs order for the proceedings. If agreement cannot be reached, liberty is granted to approach the Associate to Dicker DCJ on three business days’ notice to relist the matter for argument as to costs.”

4. It was agreed that costs should be determined by the court based on written submissions from the parties.

5. By way of written submission filed 20 April 2021, the plaintiff submits that it should have its costs of the proceedings on the usual basis and that there should be no order excluding costs from that order including the costs of the last hearing date on 8 March 2021. By written submissions filed 23 April 2021, the second defendant proposes orders that the second defendant pay the plaintiff's costs except for certain costs which include the last day of the final hearing.

6. The second defendant submits, in summary, in support of the orders which he seeks the following:

1. On 21 October 2020, the matter was set down for final hearing commencing on 3 March 2021 with a two day estimate;

2. The hearing commenced on 3 March 2021 and continued until 4 March 2021 but there were pagination difficulties with the court bundle prepared for the case by the plaintiff which resulted in delays;

3. The hearing should have been concluded on 4 March 2021 and the further hearing day on 8 March 2021 should have been unnecessary;

4. The plaintiff caused undue delay on the second day of the hearing which caused the matter to go into a third day. It was submitted that the delay was caused by issues with the court bundle resulting in the need to check different bundles. It is submitted that the second defendant should not bear the costs of the delay or the costs of the rectification and checking of the court bundle.

7. In its written submissions dated 20 April 2021, the plaintiff submits, in general summary, as follows:

1. The appropriate costs order should be that the second defendant pay the plaintiff's costs of the proceedings and the order should not exclude the costs of the last hearing day;

2. The plaintiff incurred the cost of preparing and copying the chronological bundle which included documents to be put into evidence by the second defendant;

3. The benefit including the time saved by having the chronological bundle outweighed any delay caused by the correction of page numbering;

4. Regardless of the delays, the matter would have required a third day for hearing for the making of submissions. It is submitted that the allocation of the third day for submissions gave the parties time to consider the evidence and provide greater assistance to the court in the provision of both written and oral submissions;

5. Any delay was limited and was not of such a nature to justify the court departing from the usual rule as to costs being that costs follow the event.

Consideration

8. Under s 98 of the Civil Procedure Act 2005 (NSW), the court has a general discretion relating to costs and has the full power to determine by whom, to whom and to what extent costs are to be paid.

9. Under Part 42.1 of the Uniform Civil Procedure Rules 2005, the general rule is that the court should order that costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

10. Whilst the discretion which the court has as to costs is a wide one, it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation: Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [24].

11. In my view, the submissions of the plaintiff should be preferred in relation to the issue of costs for the following reasons:

1. The plaintiff took on the job of preparing the chronological bundle which included documents to be put into evidence by the second defendant. This clear from Exhibit C;

2. This assisted in having the relevant documents in one place and saved time albeit that there were some page numbering difficulties between the various bundles of documents;

3. Although some delays were caused by the page numbering difficulties, I accept the submission of the plaintiff that the matter would have required a third day of hearing for the making of submissions;

4. The case was not a straightforward one. There was inconsistent affidavit and oral evidence between the main witnesses for the parties. The determination of the matter required a close analysis of the documentary evidence including the emails in evidence;

5. The allocation of the third day for the conclusion of the oral evidence and submissions was of benefit to the parties as it enabled them to give further consideration to the oral and documentary evidence and to provide written and oral submissions which were of assistance to the court;

6. Although there were some delays caused by the difficulties with the pagination of the documents, in my view such delays caused were limited and not of a nature such as to deprive the plaintiff of an order for costs in the proceedings.

12. Accordingly, the Court makes the following order:

1. The second defendant is to pay the plaintiff's costs of the proceedings against him as agreed or assessed.

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