Infocus Tax and Business Advisory Pty Ltd v Andrews (No 4) [2021] NSWSC 1638

Supreme Court New South Wales

Medium Neutral Citation: Infocus Tax and Business Advisory Pty Ltd v Andrews (No 4) [2021] NSWSC 1638 Hearing dates: On the papers Date of orders: 14 December 2021 Decision date: 14 December 2021 Jurisdiction: Equity Before: Robb J Decision: (1) The plaintiffs are ordered to pay the defendants' costs of their notices of motion seeking orders for the provision by the plaintiffs of security for the defendants' costs of the proceedings. (2) The costs of the plaintiffs and the first defendant of the first defendant's notice of motion seeking an order for the determination as a separate question of the effect of clause 12 of the share sale agreement dated 1 July 2019 shall be costs in the cause in respect of the determination of that issue at a final hearing, with the intent that the plaintiffs must pay the first defendant's costs if he succeeds on the issue and the first defendant must pay the plaintiffs' costs if he fails. (3) No order for costs as between the plaintiffs and the second and third defendants in respect of the notice of motion referred to in order (2). Catchwords: COSTS — Party/Party — General rule that costs follow the event — Application of the rule and discretion — Where the defendants were successful on application for security for costs — Whether costs of the application should be the defendants' costs in the cause — Where the plaintiffs are impecunious and the application was resisted for the commercial benefit of the ultimate holding company of the plaintiffs — Where the plaintiffs are ordered to pay the successful defendants' costs COSTS — Party/Party — Costs orders in interlocutory proceedings — Costs in the cause — Where a defendant sought an order for the separate determination of the effectiveness of a contractual provision capable of providing a complete defence to the defendant — Where the defendant ceased to press the application as a result of delays in the completion of pleadings and the complexity of issues raised by the plaintiffs in response to the defendant's reliance upon the contractual provision — Where the Court ordered that the costs of the application should be the parties' costs in the cause in respect of the effectiveness of the contractual provision as a defence Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Frigger v Clavey Legal Pty Ltd (No 2) [2015] WASCA 258 Infocus Tax and Business Advisory Pty Ltd v Andrews [2020] NSWSC 168 Infocus Tax and Business Advisory Pty Ltd v Andrews (No 2) [2020] NSWSC 1072 Infocus Tax and Business Advisory Pty Ltd v Andrews (No 3) [2021] NSWSC 481 Texts Cited: G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths) Category: Costs Parties: Infocus Tax & Business Advisory Pty Ltd (first plaintiff / first respondent) Announcer Group Pty Ltd (second plaintiff / second respondent) Benjamin William John Andrews (first defendant / first applicant) Kimball John Andrews (second defendant / third applicant) Veni Vidi Vixi Pty Ltd as trustee for the Imperium Trust (third defendant / second applicant) Representation: Counsel: P Lonergan (first plaintiff / second plaintiff / first respondent / second respondent) D Krochmalik (first defendant / third defendant / first applicant / second applicant) K Petch (second defendant / third respondent)