Now Electrical Projects Pty Ltd v Electro Plus Services Pty Ltd [2022] NSWDC 77

District Court New South Wales

Medium Neutral Citation: Now Electrical Projects Pty Ltd v Electro Plus Services Pty Ltd [2022] NSWDC 77 Hearing dates: 24 March 2022 Date of orders: 24 March 2022 Decision date: 24 March 2022 Jurisdiction: Civil Before: Abadee DCJ (List Judge) Decision: See paragraph 24 Catchwords: PRACTICE AND PROCEDURE – withdrawal of application for security for costs – costs of the motion Cases Cited: Buckley v Bennell Design & Constructions Pty Ltd [1974] 1 ACLR 301 Green v CGU Insurance (2018) 67 ACSR 105 Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Quin (1997) 186 CLR 622 Texts Cited: Nil Category: Costs Parties: Now Electrical Projects Pty Ltd (plaintiff/cross-defendant) Electro Plus Services (defendant/cross-claimant) Representation: Counsel: Mr T Bland for the plaintiff/cross-defendant Mr J Hyde for the defendant/cross-claimant

Solicitors: Proctor Pair Lawyers for the plaintiff/cross-defendant Wilkinson Building & Construction Lawyers for the defendant/cross-claimant File Number(s): 2020/00324476 Publication restriction: Nil

EX TEMPORE REASONS FOR Judgment 1. This matter, which concerns a dispute between a contractor and sub-contractor in connection with the supply of electrical goods and services, was set down (back on 20 September 2021) for hearing due to begin next Tuesday, 29 March 2022. The hearing followed an informal settlement conference, which was unsuccessful in resolving the dispute, occurring on 25 February 2022. The preceding day, the defendant/cross-claimant had served its affidavit evidence. 2. On 10 March 2022 the plaintiff/cross-defendant (the applicant) filed a notice of motion, by which it sought security for its costs as a cross-defendant on a cross-claim. In aid of that motion, it had earlier served a notice to produce upon the cross-claimant (the respondent), requiring production of documents. By a notice of motion dated 17 March 2022, the respondent brought its own application to set aside the notice to produce. 3. The proceeding came before me, as List Judge, on 21 March 2022, when a timetable was set down for the respondent to serve evidence and submissions. I directed that the applications be returnable for argument before me today. 4. Yesterday afternoon, after the respondent's evidence and submissions on the applications had been received, the applicant's solicitor sent to my Associate supplementary submissions prepared by the applicant's Counsel. 5. The upshot of the submissions is that the applicant now accepts that it cannot prove that the respondent would be unable to meet an adverse costs order on the cross-claim and, accordingly, it withdraws its application for security. It also withdraws its notice to produce and, in this way, argues also for the dismissal of the respondent's application. 6. Further, for reasons elaborated in its Counsel's supplementary written submissions, it argues that it should obtain an order for costs of its motion (presumably the application for security) in its favour on the usual basis. 7. The respondent opposes the application for costs and seeks to have its own costs.