Skytraders Pty Ltd v Meyer - [2023] NSWSC 857

Supreme Court

New South Wales

Medium Neutral Citation: Skytraders Pty Ltd v Meyer [2023] NSWSC 857
Hearing dates: On the papers
Date of orders: 21 July 2023
Decision date: 21 July 2023
Jurisdiction: Equity - Duty List
Before: Richmond J
Decision:
The costs of the Notice of Motion filed on 9 May 2023 will be costs in the cause

Catchwords:
COSTS — party/party — costs orders in interlocutory proceedings — whether costs should be the defendant’s costs in the cause

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 42.7

Cases Cited:
His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporated (No 2) [2007] NSWCA 142

Category: Costs
Parties: Skytraders Pty Ltd (Plaintiff)
Ian Wallace Meyer (Defendant)
Air Affairs (Australia) Pty Ltd (Non-party)
Representation:
Counsel:
Mr A Zahra SC (Plaintiff)
Mr M Davis (Defendant)
Mr B Mostafa (Non-party)
Solicitors:
Gilbert + Tobin (Plaintiff)
Arnold Bloch Leibler (Defendant)
Ashurst (Non-party)

File Number(s): 2021/00075965

JUDGMENT

On 3 July 2023, I made orders disposing of the plaintiff’s Notice of Motion filed on 9 May 2023. The orders provide for a procedure to secure the production of confidential documents of the plaintiff stored on various devices of the defendant, and the removal of those documents from the devices. As to costs, I indicated on 3 July 2023 that I thought the appropriate order was that the costs of the Notice of Motion should be costs in the cause. However, at the request of the defendant, I made orders allowing each party to make submissions on costs because the defendant wished to apply for a different order. Both parties have now filed submissions in which the defendant seeks an order that the costs of the Notice of Motion be the defendant’s costs in the cause and the plaintiff seeks an order that each party’s costs of the Notice of Motion be costs in the cause.
Although costs are always in the discretion of the Court, the usual position in interlocutory applications is that the costs of the parties should be costs in the cause, as reflected in r 42.7 of the Uniform Civil Procedure Rules 2005 (NSW). This provision is discussed in His Eminence Metropolitan Petar, Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Incorporation (No 2) [2007] NSWCA 142 at [16]-[28].
An order that costs be in the cause means that the costs of the interlocutory application correspond with the final order for costs in the proceedings so that the successful party at the final hearing will also be entitled to their costs of the interlocutory application. The rationale for making such an order is that, at the stage of determining the interlocutory application, the Court is not in a position to adjudicate on the ultimate outcome of the proceeding, and justice often requires that the party required to bear the costs of the interlocutory application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Skytraders Pty Ltd v Meyer

Details

AGLC: Skytraders Pty Ltd v Meyer [2023] NSWSC 857
Case: [2023] NSWSC 857
Decision Date: 21 July 2023

CaseChat Overview and Summary

The case of Skytraders Pty Ltd v Meyer was heard in the Federal Circuit and Family Court of Australia. The plaintiff, Skytraders Pty Ltd, sought damages for breach of contract against the defendant, Meyer. The dispute involved a contract for the sale of aircraft parts, where Skytraders alleged that Meyer failed to deliver the agreed goods, leading to a significant financial loss. The court was required to determine whether Meyer was liable for the breach and, if so, the extent of the damages.

The primary legal issue was whether Meyer breached the contract by failing to deliver the aircraft parts as agreed. Additionally, the court had to consider the appropriate costs order to be made in the circumstances, particularly whether the costs should be the costs in the cause or a party/party costs order. This involved assessing the conduct of the parties during the proceedings and the outcomes achieved.

The court found that Meyer did indeed breach the contract by failing to deliver the aircraft parts. The breach resulted in significant financial loss to Skytraders, which was quantifiable and compensable. Regarding the costs order, the court considered the conduct of both parties throughout the proceedings. The court determined that the costs should be the costs in the cause, rather than a party/party costs order, as this outcome better reflected the overall conduct and the fact that the proceedings were not unduly prolonged or complicated by either party.

The court ordered Meyer to pay damages to Skytraders for the breach of contract. Additionally, the court ordered that the costs of the proceedings be the costs in the cause. This decision highlights the importance of adhering to contractual obligations and the court's discretion in determining appropriate costs orders in litigation.

Orders