Smiths Detection (Australia) Pty Ltd v Basham (Costs) [2020] NSWSC 758

Supreme Court New South Wales

Medium Neutral Citation: Smiths Detection (Australia) Pty Ltd v Basham (Costs) [2020] NSWSC 758 Hearing dates: On the papers Date of orders: 29 May 2020 Decision date: 29 May 2020 Jurisdiction: Equity Before: Rein J Decision: See [19], [22] and [27]. Catchwords: COSTS – Party/Party – Costs orders in interlocutory proceedings – Second to fourth defendants ("corporate defendants"), having successfully defended the plaintiff's motion, sought an order that the plaintiff pay the corporate defendants' costs on the basis that costs should follow the event (the "event" being dismissal of the plaintiff's motion) – Plaintiff argued that the costs of the motion should be costs in the cause of the overall proceedings, as the motion was not sufficiently separate from the substantive proceedings to warrant an interlocutory costs order, and the plaintiff may yet be successful against the corporate defendants at a final hearing – Held: the plaintiff should pay the corporate defendants' costs of the motion, as the motion was a discrete issue about striking out the corporate defendants' defences and their success on that issue stands even if they end up losing the overall proceedings; by their victory, the corporate defendants won the right to maintain their defences at trial. The corporate defendants' costs of the motion were held to include the costs of a short hearing in the Equity Duty List on 1 November 2019 dealing with a particular prayer of the plaintiff's motion.

COSTS – Party/Party – Timing – Costs payable forthwith – The corporate defendants sought an order that their costs of defending the plaintiff's motion should be payable forthwith, which order the plaintiff opposed – Held: the Court made an order that the corporate defendants' costs of the motion are payable by the plaintiff forthwith, on the basis of the discrete nature of the motion and due to the lack of proximity to a final hearing.