West Tankers Pty Ltd v Scottish Pacific Business Finance Pty Ltd

[2017] NSWSC 711

Supreme Court

New South Wales

Medium Neutral Citation:	West Tankers Pty Ltd v Scottish Pacific Business Finance Pty Ltd [2017] NSWSC 711
Hearing dates:	By written submission
Decision date:	05 June 2017
Jurisdiction:	Equity - Commercial List
Before:	Hammerschlag J
Decision:	Plaintiff to pay the defendant’s costs of the proceedings
Catchwords:	COSTS – where proceedings concern previously undecided issue of law – no reason to depart from the usual rule that costs follow the event
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	West Tankers Pty Ltd v Scottish Pacific Business Finance Pty Ltd [2017] NSWSC 621 NSW Land and Housing Corporation v DJ’s Home and Property Maintenance Pty Ltd (in Liq) [2013] NSWSC 1167
Category:	Costs
Parties:	West Tankers Pty Ltd - Plaintiff Scottish Pacific Business Finance Pty Ltd - Defendant
Representation:	Counsel: F.P. Hicks - Plaintiff J. Glover – Defendant   Solicitors: Moray & Agnew Lawyers - Plaintiff DLA Piper Australia - Defendant
File Number(s):	2017/76866

Judgment

1. On 19 May 2017 I determined that Scottish Pacific is entitled to the monies standing in the District Court: West Tankers Pty Ltd v Scottish Pacific Business Finance Pty Ltd [2017] NSWSC 621. I provisionally ordered that West Tankers pay the costs of Scottish Pacific in the proceedings, the order to take effect unless within seven days either party notified my Associate in writing that some other order was sought, and the grounds upon which it was sought.

2. West Tankers seeks an order that each party pay its own costs on the grounds that the issue raised by the proceedings was novel and that the position taken by it was reasonable. Scottish Pacific seeks its costs on the basis that it succeeded.

3. Unless it appears to the Court that some other order should be made as to the whole or any part of the costs, the Court is to order that costs follow the event: see Uniform Civil Procedure Rules Pt 42 r 42.1. Each case must be dealt with on its own circumstances.

4. I do not consider that this is an appropriate case to depart from the usual rule, even though I do not consider that West Tankers acted unreasonably in any way.

5. Scottish Pacific had a decisive win on a pure question of law. This was not a complex multi-party contest as was the case in NSW Land and Housing Corporation v DJ’s Home and Property Maintenance Pty Ltd (in Liq) [2013] NSWSC 1167. That West Tankers’ argument was reasonable (but wrong) on a novel topic, is not a reason to deprive Scottish Pacific of its costs in meeting and defeating it.

6. West Tankers is to pay Scottish Pacific’s costs of the proceedings, including the costs of and incidental to the argument as to costs.

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Decision last updated: 05 June 2017