Pesec v Consolidated Builders Limited (No 2)

The matter before the court was an application for costs by the defendant, Consolidated Builders Limited, following a previous determination of an application for preliminary discovery made by the plaintiff, Pesec. The dispute centred around whether the plaintiff should bear the majority of the costs associated with the application, given that his success arose from an amended argument presented during the hearing. The case was heard in the Supreme Court of New South Wales.

The primary legal issue for the court to decide was whether the plaintiff should be required to pay the majority of the costs associated with the application for preliminary discovery, despite the fact that his success was due to an amended argument presented during the hearing. The court had to balance the principle that the costs should follow the event, with the fact that the plaintiff's success was based on an argument that was not initially presented.

The court found that the plaintiff's success on the application for preliminary discovery arose out of an amended argument presented during the hearing, which was not the original basis for the application. The court held that the principle that costs should follow the event applied, and therefore the plaintiff should bear the majority of the costs associated with the application. The court also noted that the plaintiff had been aware of the potential for costs to be awarded against him, and had not objected to the defendant's costs application on this basis. The court concluded that the plaintiff should pay the majority of the costs associated with the application for preliminary discovery.

In conclusion, the court ordered that the plaintiff, Pesec, pay the majority of the costs associated with the defendant's application for preliminary discovery, given that his success was based on an amended argument presented during the hearing. The court held that the principle that costs should follow the event applied, and that the plaintiff should bear the majority of the costs associated with the application.