Two Italian Boys Holdings Pty Ltd v The Winery Pty Ltd
[2017] NSWSC 67
•13 February 2017
Supreme Court
New South Wales
Medium Neutral Citation: Two Italian Boys Holdings Pty Ltd v The Winery Pty Ltd [2017] NSWSC 67 Hearing dates: 1 February 2017 Date of orders: 13 February 2017 Decision date: 13 February 2017 Jurisdiction: Common Law Before: Harrison J Decision: The plaintiffs should pay the defendant’s costs of and incidental to its motion for security for costs filed on 24 March 2016.
Catchwords: COSTS – security for costs – costs of motion – where defendant ultimately successful – whether costs should follow that event Category: Procedural and other rulings Parties: Two Italian Boys Holdings Pty Ltd (First Plaintiff)
2IB Distributions Pty Ltd (Second Plaintiff)
The Winery Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
A d’Arville (Applicant/Defendant)
D Stewart (Respondent/Plaintiffs)
Henry Davis York (Applicant/Defendant)
Chapman Thackeray Law (Respondent/Plaintiffs)
File Number(s): 2015/360681 Publication restriction: Nil
Judgment
-
HIS HONOUR: On 23 August 2016, I dealt with the defendant’s notice of motion filed on 24 March 2016 seeking security for costs: see Two Italian Boys Holdings Pty Ltd v The Winery Pty Ltd [2016] NSWSC 1163. These reasons deal with who should pay the costs of that motion.
-
The following relevant matters are not in dispute.
-
On 20 March 2016, the defendant gave the plaintiffs an opportunity to provide security in the form of three tranches totalling $60,000 to be paid into court. The offer was not accepted. The defendant’s motion for security was filed four days later. On 9 May 2016, the defendant gave the plaintiffs another opportunity to provide security in the form of three tranches totalling $130,000. That offer was also not accepted. On 1 February 2017, the plaintiffs consented to orders that they provide security in the form of bank guarantees totalling $150,000.
-
The defendant maintains in these circumstances that it has been vindicated. The plaintiffs have agreed in effect to provide what the defendants have sought from the beginning. In such circumstances the defendant maintains that costs should follow the event.
-
The plaintiffs maintained that all parties should pay their own costs of the defendant’s motion. This was said to be for three reasons.
-
First, the offers made by the defendant were in effect too early and at a time before the plaintiffs were in a position to understand the defendant’s case. Accordingly, the defendant’s offers could not be determinative of the costs issue. I disagree. My concern to understand the defendant’s response to the plaintiffs’ claim was directed to the Court’s then lack of understanding of the parties’ respective litigious positions and particularly the issue of the extent to which, if at all, the defendant’s conduct may have generated the plaintiffs’ impecuniosity. It could not affect the present argument as to costs because the true position concerning the relationship between the plaintiffs’ claim and their financial position must at all times have been clearly understood by them. The resolution of the defendant’s notice of motion by the plaintiffs’ agreement to provide the security sought serves only to confirm what the plaintiffs must have understood all along.
-
Secondly, the relevant “event” is not the result reflected in the consent orders made on 1 February 2017 but some other circumstance earlier in the proceedings. The plaintiffs appear to maintain that my caution in granting the relief sought in the first instance should be given precedence over the effect of their ultimate capitulation. I disagree. The defendant sought and ultimately succeeded in achieving a result in its favour. Costs should follow that event.
-
Thirdly, it was suggested by the plaintiffs that I should take a “broad brush” approach to the question of costs, given the discretionary nature of the costs issue, in the interests of doing justice between the parties. While I accept the proposition which the plaintiffs propound, I do not understand why or how it could or should lead to or produce any result other than that the plaintiffs should pay the costs of the motion.
-
In my opinion the plaintiffs should pay the defendant’s costs of and incidental to its motion for security for costs filed on 24 March 2016.
**********
Decision last updated: 13 February 2017
0
1
0