Rur Investments Pty Ltd v Independant Practitioner Network Ltd (No 2)

[2011] SADC 62

District Court of South Australia

(Civil)

RUR INVESTMENTS PTY LTD v INDEPENDANT PRACTITIONER NETWORK LTD (No 2)

[2011] SADC 62

Judgment of His Honour Judge Tilmouth (ex tempore)

4 May 2011

PROCEDURE - COSTS - INTERLOCUTORY PROCEEDINGS - COSTS RESERVED

Held:  In the circumstances the question of costs of failed interlocutory injunction, reserved to the trial judge.

Australian Securities and Investment Commission v Krecichwost (2008) 72 NSWLR 498; Forlyle Pty Ltd v Tiver (2007) 252 LSJS 387; [2007] SASC 464, applied.
Kickers International SA v Paul Kettle Agencies Ltd [1999] FSR 436, distinguished.

RUR INVESTMENTS PTY LTD v INDEPENDANT PRACTITIONER NETWORK LTD (No 2)
[2011] SADC 62

1. The respondent applies for costs following an unsuccessful application for an injunction by the plaintiff/applicant.  In my reasons for decision I found there was a serious question to be tried, but held against the applicant/plaintiff on the balance of convenience and on a finding that damages would furnish an adequate remedy.[1]

   [1]    RUR Investments Pty Ltd v Independant Practitioner [2011] SADC 61, 29 April 2011

2. I accept for the moment as a starting point the statement by Young CJ in Equity, in his judgment in Australian Securities and Investment Commission v Krecichwost:[2]

   In an interlocutory application for injunction the usual consequence as to costs is that if the plaintiff succeeds, then costs are costs in the cause or sometimes plaintiff’s costs in the cause; if the plaintiff loses, then the plaintiff pays costs.

   [2] (2008) 72 NSWLR 498 at [16]

3. In this particular matter, of the issues which were agitated, on a broad assessment I consider that about 50per cent of the time spent during argument was devoted to issues upon which the applicant succeeded, and 50 per cent on which it failed, so that in terms of the distribution of time, the burden falls equally as between the parties.

4. As to the issue of whether or not the question of costs should be reserved to the trial judge, in general terms I also accept the advice of Hoffman J in the case of Kickers International SA v Paul Kettle Agencies Ltd,[3] that although reserving costs to the trial judge might appear attractive, it has the disadvantage of reconstruction.  His Honour added that there may not be a trial in any event.  I bear those considerations in mind.

   [3] [1999] FSR 436 at 438 - 439

5. However in my view, given the fact that I did not decide on at least two prospective causes of action (implied contracted terms and negligence), it seems to me that in the circumstances of this case if it goes to trial, a trial judge is very likely to be in a better position than I am, to assess the merits.  For that reason and because of an intimation I am about to give, I consider the appropriate order is to reserve costs to the trial judge.

6. I do so because during the course of commercial litigation, it is common experience for a plethora of cost orders to be made.  I consider the better course is for the trial judge to cumulate or consolidate such orders into one global order if possible, otherwise questions of taxation become very messy, quite apart from questions of enforcement.

7. If I had been driven to make an order for costs in favour of the respondent/ defendant, and applying the general principle of Australian Securities & Investment Commission v Krecichwost,[4] I consider the respondent should have two-thirds of its costs, to be agreed or taxed.  I say that firstly, because in my assessment about 50 per cent of the time devoted to this case was spent on issues on which it succeeded and equal time was spent on those which it lost.  On the other hand as the Full Court pointed out in for Forlyle Pty Ltd v Tiver,[5] even when making those kind of adjustments, a successful party has a reasonable expectation of obtaining an order for some costs.  In my judgment, two-thirds of the costs of the application in favour of the defendant, would have been otherwise appropriate.

   [4]    Above

   [5] (2007) 252 LSJS 387; [2007] SASC 464 at [79]