Sydney Discus World Aquariums Pty Ltd v Botany Way Scapes Pty Ltd (No 2)

Sydney Discus World Aquariums Pty Ltd (the applicant) brought an application before the Federal Circuit and Family Court of Australia, seeking to set aside a costs order previously made against it. The respondents, Botany Way Scapes Pty Ltd, contended that the application should be dismissed.

The court was required to determine whether to exercise its discretion to set aside the costs order, and if not, whether the applicant was entitled to an order for the costs of the respondents' cross-claim. The court also considered whether to award costs of the present application and on what basis.

Baird J noted that the applicant had withdrawn its application. The court found that the applicant had been provided with notice of the hearing date, time, and place, as well as the evidence and submissions in support of the respondents' costs application, through its designated email address and mobile number. The court was satisfied that the applicant's explanation for failing to appear at the hearing was not credible and that setting aside the costs order would cause substantial prejudice to the respondents by requiring the re-litigation of issues already determined.

Consequently, the court dismissed the application. The respondents were awarded their costs of the hearing and determination of the application, fixed in the sum of $3,547.