Wonderful Pty Ltd v Faithful Investment Pty Ltd (No 2)

[2024] NSWSC 1006

Supreme Court

New South Wales

Medium Neutral Citation:

Wonderful Pty Ltd v Faithful Investment Pty Ltd (No 2) [2024] NSWSC 1006

Hearing dates:

12 August 2024

Date of orders:

12 August 2024

Decision date:

12 August 2024

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

Second defendant’s notice of motion dismissed with costs

Catchwords:

COSTS – party/party – costs orders in interlocutory proceedings – where order made for second defendant to pay plaintiff’s costs of motion – where second defendant seeks to have costs order varied

Cases Cited:

Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

Wonderful Pty Ltd v Faithful Investment Pty Ltd [2024] NSWSC 472

Category:

Procedural rulings

Parties:

Wonderful Pty Limited (Plaintiff/Respondent)
Sandu Pty Ltd (Second Defendant/Applicant)

Representation:

Counsel:
D A Hughes (Plaintiff/Respondent)
D A Priestley SC / J Rodgers (Second Defendant/Applicant)

Solicitors:
Davidson Legal, Consulting, Advisory (Plaintiff/Respondent)
Kardos Scanlan Lawyers (Second Defendant/Applicant)

File Number(s):

2022/362679

EX TEMPORE JUDGMENT (REVISED)

1. The background to this matter is set out in my earlier judgment. ^[1] I shall use the same abbreviations here.

   1. Wonderful Pty Ltd v Faithful Investment Pty Ltd [2024] NSWSC 472.

2. The plaintiff, Wonderful Pty Ltd, sought the appointment of a provisional liquidator to the first defendant and a receiver to what I have earlier referred to as “the Trust”. Ultimately, and in circumstances that I outlined in my earlier judgment, the parties came to an arrangement whereby a “less drastic” ^[2] regime was agreed between the parties.

   2. To use the language of the parties.

3. Nonetheless, the plaintiff sought an order that the second defendant pay its costs of the motion, and, for the reasons that I set out in my judgment of 26 April 2024, I made an order that the second defendant pay the plaintiff’s costs of the motion.

4. Now, by notice of motion filed on 15 May 2024, the second defendant seeks to have the costs order varied so that it applies only to costs incurred in the period between 15 March 2024 and 26 April 2024; that is, after the date that the motion was set down for hearing before me, up to the date of my judgment.

5. The basis upon which the second defendant seeks that order is set out in the submissions of Mr Priestley SC and Mr Rodgers, as follows:

“Sandu submits that, in light of the facts that:

(a)   despite commencing the proceedings in December 2022 the plaintiff did not agitate for a hearing on the interim relief until March 2024;

(b)   the interim relief sought was not ultimately granted, but the costs order was made in the rare circumstances contemplated in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin; ^[3] and

(c)   not all of the plaintiff’s costs can be properly attributed to the interim relief application, but it is difficult to clearly differentiate or allocate,

a further order limiting the costs recoverable should be made. The most fair, convenient and logical order would be one limiting the costs by time period, and the most appropriate date would be from 15 March 2024 when orders were made listing it for hearing, until the interlocutory hearing. In Sandu’s submission that approach would most closely accord with the ordinary outcome for costs orders which govern interlocutory applications.

The order sought by Sandu will prevent any disputes from arising on assessment and unnecessary costs being incurred on submissions as to what was intended by the existing order. It will also mean that the ultimate trial judge will retain their discretion with respect to substantive costs of the matter, which may otherwise be encroached upon if this issue is not clarified now.”

3. (1997) 186 CLR 622; [1997] HCA 6.

6. It may be that when the plaintiff’s costs are being assessed, questions will arise as to what costs are properly attributable to the plaintiff’s motion, other than to the proceedings themselves. But that is a common feature of costs assessments. What is now proposed is that I make an arbitrary decision to exclude all costs prior to 15 March 2024 in circumstances where it is accepted that it is likely, if not certain, that some costs incurred prior to that day are probably attributable to the motion.

7. Assuming I have jurisdiction to do so, I see no basis upon which I should or could make the orders proposed.

8. The order that I make today is that the second defendant’s motion of 15 May 2024 is dismissed with costs.

**********

Endnotes