Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd - Costs [2020] NSWSC 633

Supreme Court New South Wales

Medium Neutral Citation: Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd - Costs [2020] NSWSC 633 Hearing dates: Written submissions Decision date: 26 May 2020 Jurisdiction: Equity - Technology and Construction List Before: Hammerschlag J Decision: (1) The plaintiffs are to pay the defendant's costs of the proceedings. (2) The costs incurred from 11am on 26 October 2018 are to be paid on the indemnity basis. (3) Pretium Funding Pty Ltd is jointly and severally liable with the plaintiffs to the defendant for the payment of the defendant's costs of the proceedings incurred from 15 March 2019. (4) Prayer 2 of the Notice of Motion seeking payment out of Court of the security is dismissed. Catchwords: COSTS – Civil Procedure Act 2005 (NSW) s 98(1)(b) – Non-party costs order – Litigation funder – Where funded plaintiffs bring unsuccessful proceedings – Where litigation funder stood to receive a significant financial benefit from the fruits of the litigation – Relevant circumstances warranting making of the order – Release of monies paid into Court by plaintiffs as security for costs – Where consent order regulates payment out and agreed condition that costs be agreed, set or fixed by the Court has not yet been met – Indemnity costs – UCPR Pt 42.15A – Where result of litigation is more favourable to defendant than offered – HELD – Indemnity costs appropriate as a result of offer of compromise and adverse results to plaintiffs – Money in Court not to be paid out until agreed conditions are met – Appropriate to make a non-party costs order against litigation funder with respect to costs incurred by the defendant from the time of the litigation funding agreement. Legislation Cited: Corporations Act 2001 (Cth) s 440D(1) Civil Procedure Act 2005 (NSW) s 98(1)(b) Uniform Civil Procedure Rules 2005 (NSW) rr 20.26, 42.1, 42.2, 42.7(2), 42.15A Cases Cited: Ballantyne Suites Pty Ltd v Ballantyne Chambers Pty Ltd (in liquidation) [2014] VSCA 223 Botany Bay City Council v Latham (No 2) [2013] NSWCA 450 Chapelgate Credit Opportunity Fund Master Fund Limited v Money & Ors [2020] EWCA Civ 246 Deutsche Bank AG v Sebastian Holdings [2016] EWCA Civ 23 Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39; [2005] 1 NZLR 145 Excalibur Ventures LLC v Texas Keystone Inc & Ors [2016] EWCA Civ 1144 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Gore v Justice Corp Pty Ltd (2002) 119 FCR 429 Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2011] NSWCA 1305 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWSC 130 PM Works Pty Ltd v Management Services Australia Pty Ltd t/as Peak Performance PM [2018] NSWCA 168 Re Atlantic Computer Systems PLC [1992] Ch 505 Category: Costs Parties: Mistrina Pty Ltd - First Plaintiff Estate of the late Elias Sikos - Second Plaintiff