Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health (No 2)
[2023] NSWSC 1417
•21 November 2023
Supreme Court
New South Wales
Medium Neutral Citation: Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health (No 2) [2023] NSWSC 1417 Hearing dates: On the papers; submissions received 15 and 17 November 2023 Date of orders: 21 November 2023 Decision date: 21 November 2023 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Plaintiff to pay the defendants’ costs of the application for a separate question
Catchwords: COSTS – party/party – unsuccessful application for separate question – whether costs should follow the event
Legislation Cited: Procurement (Enforceable Procurement Provisions) Direction 2019 (NSW)
Cases Cited: Arch Underwriting Agency (Australia) Pty Ltd v Lexon Insurance Pte Ltd [2020] NSWSC 580
Gordon v Winning Appliances Pty Ltd [2021] NSWSC 173
Lendlease Corporation Ltd v Acciona Infrastructure Asia Pacific Pty Ltd [2021] NSWSC 1546
Macquarie Publications Pty Ltd v Coles Supermarkets Australia Pty Ltd [2020] NSWSC 987
Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health [2023] NSWSC 1343
Skytraders Pty Ltd v Meyer [2023] NSWSC 857
Yaem Pty Ltd as trustee for R & R Discretionary Trust v MMP Industrial Pty Ltd [2023] NSWSC 1080
Category: Costs Parties: Modeus Pty Ltd (Plaintiff/Applicant)
Secretary, Ministry of Health (First Defendant/Respondent)
Health Administration Corporation (Second Defendant/Respondent)
State of New South Wales (Third Defendant/Respondent)Representation: Counsel:
Solicitors:
M Green SC with A Sapienza (Plaintiff/Applicant)
A Cheshire SC with N Condylis (Defendants/Respondents)
KCL Law (Plaintiff/Applicant)
Norton Rose Fulbright (Defendants/Respondents)
File Number(s): 2022/338722
JUDGMENT
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On 8 November 2023, I refused the application by the plaintiff, Modeus Pty Ltd, to order a separate question of whether the Procurement (Enforceable Procurement Provisions) Direction 2019 (NSW) had been, in the circumstances, engaged. [1]
1. Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health [2023] NSWSC 1343.
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This judgment deals with the question of costs.
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Notwithstanding its lack of success on the application, Modeus seeks an order that the costs of the separate question application be costs in the cause, or alternatively, be reserved.
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In support of that application, Modeus submitted that the “usual position in respect of the costs of an interlocutory application … is that the costs … be costs in the cause”, citing the decision of Richmond J in Skytraders Pty Ltd v Meyer. [2]
2. [2023] NSWSC 857 at [2].
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However, the “usual position”, as I have held in many cases,[3] in relation to a failed application for a separate question is that costs follow the event. Skytraders was not such a matter. [4]
3. Yaem Pty Ltd as trustee for R & R Discretionary Trust v MMP Industrial Pty Ltd [2023] NSWSC 1080 at [19]; Gordon v Winning Appliances Pty Ltd [2021] NSWSC 173 at [36]; Macquarie Publications Pty Ltd v Coles Supermarkets Australia Pty Ltd [2020] NSWSC 987 at [29]; Lendlease Corporation Ltd v Acciona Infrastructure Asia Pacific Pty Ltd [2021] NSWSC 1546 at [13]; also see Arch Underwriting Agency (Australia) Pty Ltd v Lexon Insurance Pte Ltd [2020] NSWSC 580 at [17] (Ball J).
4. It concerned production of confidential documents: see [1].
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The application for a separate question was a discrete aspect of the proceedings. I cannot see how the future conduct of the proceedings will cast any light on what order should now be made in relation to the costs of that application.
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Further, the evidence shows that the respondents to the motion, the Secretary and Health Administration Corporation, raised, in correspondence, contentions as to why a separate question should not be ordered, which in large part reflect the conclusions to which I came.
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I order that the plaintiff pay the defendants’ costs of the application for a separate question.
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Endnotes
Decision last updated: 21 November 2023
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