Southern Equity Pty Ltd v Timevale Pty Ltd - [2015] NSWSC 2014

Supreme Court

New South Wales

Medium Neutral Citation: Southern Equity Pty Ltd v Timevale Pty Ltd [2015] NSWSC 2014
Hearing dates: 11 March 2015
Date of orders: 11 March 2015
Decision date: 11 March 2015
Jurisdiction: Equity
Before: Brereton J
Decision:
Order as to interests on costs made.

Catchwords: COSTS – interest on costs – party who obtains costs ordinarily entitled to order for interest also – absence of countervailing discretionary factors – costs of motion seeking order for interest – where motion brought after costs order made
Legislation Cited: (NSW) Civil Procedure Act 2005, s 101(4)
(NSW) Uniform Civil Procedure Rules 2005, r 36.7(1)
Cases Cited: Grace v Grace (No 9) [2014] NSWSC 1239
Wood v Inglis [2010] NSWSC 749
Category: Costs
Parties: Southern Equity Pty Ltd ACN 003 364 985 (plaintiff)
Timevale Pty Ltd (defendant)
Representation:
Counsel:
T Fishburn (plaintiff)
C Harris SC (defendant)
Solicitors:
Melbourne Legal Chambers (plaintiff)
Matthews Folbigg (defendant)

File Number(s): 2008/280635

Judgment (ex tempore)

HIS HONOUR: On 11 February 2015, I made orders finally, it was hoped, disposing of these proceedings, including (after argument), costs orders as follows:

The plaintiff pays the defendant's costs of the proceedings in the Federal Court, other than the costs of filing and serving the initiating process.

The defendant pay 25% of the plaintiff's costs of the proceedings in this Court up to and including 5 May 2012, and of the costs of filing and serving the initiating process in the Federal Court.

The defendant pay the plaintiff's costs of the proceedings in this Court since 5 May 2012, provided that the plaintiff be entitled to recover the costs of preparing and otherwise in connection with a single notice of objections, surcharges and falsifications only.

At that time, the defendant foreshadowed that it might make an application for interest on costs pursuant to the (NSW) Civil Procedure Act 2005, s 101(4). By notice of motion filed on 5 March 2015 and returnable today, the defendant seeks an order pursuant to s 101(4) that the plaintiff pay to it interest on the costs payable by it to the defendant pursuant to order 3 of 11 February 2015 at the rate set out in (NSW) Uniform Civil Procedure Rules 2005, r 36.7(1). The plaintiff has not submitted that such an order should not be made, but submits that such an order should also be made in respect of the costs orders in favour of the plaintiff against the defendant.
For reasons elaborated in detail in Grace v Grace (No 9) [2014] NSWSC 1239, in my view, as expressed at [66] of that judgment:

…a party who obtains a costs order will ordinarily – in the absence of any countervailing discretionary factor – also obtain an order for interest on those costs, if it seeks one, and evidence of payment of the costs is not required; nor is evidence explaining the course of the proceedings.

No countervailing discretionary factor having been identified – either in respect of the costs order in…

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.

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Details

Case: [2015] NSWSC 2014
Decision Date: 11 March 2015

CaseChat Overview and Summary

The parties involved in the case were Southern Equity Pty Ltd, the plaintiff, and Timevale Pty Ltd, the defendant. The dispute arose from a legal proceeding in which Southern Equity sought recovery of costs and interest on those costs. The case was heard in the Supreme Court of New South Wales. The plaintiff argued that they were entitled to interest on their costs, while the defendant contested this claim, asserting that interest should not be awarded without specific justification. The central issue before the court was whether the plaintiff, having already obtained an order for costs, was also entitled to interest on those costs and whether the costs associated with a subsequent motion seeking interest could be recovered.

The court considered whether the plaintiff was entitled to interest on the costs they had been awarded. It examined the principles of costs in legal proceedings, particularly the right of a successful party to interest on their costs. The court noted that, in the absence of countervailing discretionary factors, a party who obtains an order for costs is ordinarily entitled to an order for interest as well. The court also considered the timing of the motion for interest, which was brought after the original costs order had been made, and whether this impacted the entitlement to interest on the costs of the motion itself.

In its decision, the court held that the plaintiff was entitled to interest on the costs they had been awarded. The court found that there were no countervailing discretionary factors that would prevent the plaintiff from recovering interest. It also ruled that the costs of the motion seeking interest could be included in the plaintiff's entitlement to interest on their costs. The court's reasoning was based on the principle that the successful party in legal proceedings should be compensated for the time value of money, and there were no reasons to deviate from this principle in this case. The final orders of the court reflected these findings, granting the plaintiff interest on their costs and the costs of the motion for interest.

Orders