Nightowl Properties Pty Ltd v BDR No. 3 Pty Ltd (No 2)

The case of Nightowl Properties Pty Ltd v BDR No. 3 Pty Ltd (No 2) involved a dispute between the plaintiff, Nightowl Properties, and the defendant, BDR No. 3 Pty Ltd. The proceedings related to a judgment on three separate applications, one of which was dismissed, another resulted in the defendant providing undertakings, and the last was granted. The matter came before the court for the determination of costs following these applications. The primary legal issue was whether the plaintiff or the defendant should be granted a costs order and, if so, whether these costs should be apportioned between the parties.

The court considered the principle of costs following the event, which generally means that the unsuccessful party in litigation pays the successful party’s costs. However, the court recognised that there were exceptional circumstances where apportionment of costs might be appropriate. In this case, while the plaintiff's last application was successful, the court found that the circumstances warranted a more nuanced approach. The court examined the conduct of both parties, the complexity of the issues, and the outcomes of each application before making its decision.

After careful consideration, the court ruled that the defendant should pay one-half of the plaintiff's costs associated with the application filed on 21 June 2022. The court found that while the plaintiff was successful in the final application, the overall conduct and the nature of the applications warranted a partial reimbursement of costs rather than a full costs order. The court's decision balanced the principle of costs following the event with the need for a fair outcome considering the specifics of the case.

The final order was that the defendant pay one-half of the plaintiff's costs of the application filed on 21 June 2022, reflecting the court's considered approach to apportioning costs in this complex litigation.