PPK Willoughby v Eighty Eight Construction

In the case of PPK Willoughby v Eighty Eight Construction, the plaintiff sought a determination regarding the allocation of costs following the dismissal of their application for an interlocutory injunction. The primary dispute centred on whether the defendant should be held liable for the plaintiff's costs due to the plaintiff's failure to proceed with their notice of motion as planned. This was a case before the Supreme Court of New South Wales, where the plaintiff had applied for an interlocutory injunction to prevent the defendant from proceeding with certain construction work.

The legal issues the court had to address included whether costs should follow the event when the notice of motion was not pressed at the hearing and whether the defendant would be held liable for the plaintiff's costs if the notice of motion was unlikely to have been brought had the defendant complied with a prior notice to produce or if an appropriate response had been given to a letter seeking financial information. The court needed to consider the principles of costs in interlocutory applications and whether the plaintiff's failure to press the notice of motion could be attributed to the defendant's non-compliance with procedural notices.

The court found that the plaintiff's failure to proceed with the notice of motion was due to the defendant's non-compliance with a notice to produce and the plaintiff's own failure to respond appropriately to a letter seeking financial information. The court held that the defendant should not be held liable for the plaintiff's costs, as the plaintiff's own procedural missteps were significant factors in the outcome. The court emphasised that the principle that costs should follow the event was not absolute and could be set aside in appropriate circumstances. The court concluded that the defendant's procedural breaches did not warrant the plaintiff recovering their costs from the defendant.