MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd (No 2)

[2020] NSWSC 1222

Supreme Court

New South Wales

Medium Neutral Citation:

MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd (No 2) [2020] NSWSC 1222

Hearing dates:

On the papers

Date of orders:

9 September 2020

Decision date:

09 September 2020

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Costs to be paid forthwith

Catchwords:

COSTS – determination of a separately identifiable matter or a discrete aspect of the case

COSTS – costs payable forthwith

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1

GNS Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 2) [2019] NSWSC 463

MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd [2020] NSWSC 1147

Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31

Category:

Costs

Parties:

MTR Corporation (Sydney) NRT Pty Ltd (First Plaintiff)
UGL Rail Services Pty Ltd (Second Plaintiff)
Thales Australia Ltd (First Defendant)
Helen Durham (Second Defendant)

Representation:

Counsel:
M Christie SC with D Hume (Plaintiffs)
F P Hicks SC with P F Santucci (First Defendant)

Solicitors:
McCullough Robertson Lawyers (Plaintiffs)
Marque Lawyers (First Defendant)

File Number(s):

2020/176787

Judgment

1. I delivered judgment in this matter on 27 August 2020. [1] These reasons assume familiarity with that judgment. I shall use the same abbreviations.

   1. MTR Corporation (Sydney) NRT Pty Ltd v Thales Australia Ltd [2020] NSWSC 1147.

2. To give effect to that judgment I made the following orders on 4 September 2020:

1. The separate question of 28 July 2020 be “Is the Adjudication Determination No.2020058EA dated 5 June 2020 invalid on any of the grounds alleged in paragraphs C14 to C20 of the Plaintiffs’ Amended Technology and Construction List Statement?”

2. The separate question be answered “No”.

3. The plaintiff pay the defendants costs of the separate question.

3. Thales seeks an order that its costs be paid forthwith.

4. In this list, unless otherwise ordered, a party in whose favour an order for costs has been made may proceed to assessment of such costs forthwith. [2]

   2. Practice Note SC Eq 3 at [57].

5. As I have earlier observed, although the Practice Note directs attention to when costs of an interlocutory order may be assessed, as opposed to when those costs are to be paid, [3] there would, in most if not all cases, be little point in ordering that the costs the subject of an interlocutory order be assessed forthwith unless such costs were also to be payable forthwith. [4]

   3. See UCPR Rule 42.7(2) which provides that costs of an application made in proceedings “do not become payable until the conclusion of the proceedings” unless the Court “orders otherwise”.

   4. GNS Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 2) [2019] NSWSC 463 at [7].

6. Considerations relevant to whether costs should be payable forthwith include whether:

1. the interlocutory decision represents “the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect” of the case; [5] and

2. “there is still some considerable distance to go in litigation so that it may be appropriate that the successful party obtain the fruits of its costs order now.”[6]

   5. Eg Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; 55 NSWLR 1 at [11] (Barrett J); Pavlovic v Universal Music Australia Pty Ltd (No 2) [2016] NSWCA 31 at [15] (Bathurst CJ, Beazley P and Meagher JA).

   6. Fiduciary supra at [13]; Pavlovic supra at [15].

7. SJV commenced these proceedings alleging that the Determination should be set aside on the grounds of jurisdictional error.

8. SJV then amended its List Statement to allege that the Determination should also be set aside upon the basis of Thales’s alleged misleading or deceptive conduct.

9. In answering the separate question, I have decided that the Determination should not be set aside on the grounds of jurisdictional error. The question of whether the Determination should be set aside on the basis of Thales’s alleged misleading or deceptive conduct remains to be determined.

10. Nonetheless, in my opinion, my judgment has determined a “separately identifiable matter” and a “discrete aspect” of the case.

11. Whether or not SJV seeks to prosecute its misleading or deceptive conduct claim will depend upon whether it succeeds in an appeal it has foreshadowed from my decision.

12. If that appeal is successful, there will be no cause for SJV to continue with a misleading or deceptive conduct claim.

13. If SJV’s appeal is not successful, then SJV does need to prosecute the misleading or deceptive conduct claim.

14. It appears unlikely that claim will be determined this year. There is a pending application by Thales to strike out that aspect of the List Statement (on the basis that the parties have agreed to submit the relevant disputes to arbitration). Further, SJV has not yet served its evidence in relation to that question. There is plainly “some considerable distance to go” before that claim is heard.

15. In those circumstances, my opinion is that this is a case where it is appropriate to order that costs be payable forthwith.

16. Thales accepts that that order is subject to the stay that I have ordered pending the foreshadowed appeal and subject to any later stay that the Court of Appeal might order.

17. I order that:

1. The costs the subject of my order of 4 September 2020 be payable forthwith.

2. This order be stayed until 5pm on 14 September 2020.

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Endnotes

Decision last updated: 09 September 2020