Supreme Court New South Wales Medium Neutral Citation: Bluesky Consultancy (Aust) Pty Ltd v Study Group Australia Pty Limited [2023] NSWSC 705 Hearing dates: 23 June 2023 Date of orders: 23 June 2023 Decision date: 23 June 2023 Jurisdiction: Equity Before: Hammerschlag CJ in Eq Decision: The plaintiff is to pay the defendant's costs of the proceedings Catchwords: COSTS – proceedings for preliminary discovery – where documents sought were not discovered – where defendant provided a consolidated spreadsheet providing the plaintiff information but not discovery and the plaintiff determined not to proceed with the proceedings and the proceedings were dismissed by consent – HELD – plaintiff to pay the defendant's costs Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Renton v Kelly [2018] NSWSC 1377 Category: Costs Parties: Bluesky Consultancy (Aust) Pty Ltd (ACN 127 269 783) (Plaintiff) Study Group Australia Pty Limited (ACN 070 919 327) (Defendant) Representation: Counsel: G Gee (Plaintiff) A Emmerson (Defendant) Solicitors: Auyeung Hencent & Day Lawyers (Plaintiff) Baker McKenzie (Defendant) File Number(s): 2022/00202136 Ex Tempore JUDGMENT (REVISED) 1. The plaintiff filed a Summons on 11 July 2022 seeking preliminary discovery. This was after, I am informed, there was extensive correspondence seeking information from the defendant. 2. In response to the application, the defendant served an affidavit by Mr Martin Roy Butler-Thompson affirmed on 29 September 2022. It provided a body of information, including a spreadsheet containing information which the plaintiff deemed adequate to make a decision to commence proceedings in the District Court, which the plaintiff then did. 3. The Summons identified the documents sought in paragraph 2 of Annexure A. They are all documents, including records of communications with any student, invoices and receipts which record the following information in respect of a "clawback transaction", which was defined in paragraph 1 of Annexure A. There then follows nine subparagraphs identifying primary documentation, the subject of this application. 4. It will be readily apparent from what I have already said that the plaintiff obtained none of the documents which it sought by the Summons. The Summons was dismissed by consent, leaving over only the question of costs. 5. Counsel for the plaintiff seeks that the costs be costs in the District Court proceedings. The defendant seeks its costs. Counsel for the plaintiff referred to the decision of Ward CJ in Eq (as the President then was) in Renton v Kelly [2018] NSWSC 1377. In that case, a preliminary discovery application was made. The documents that were sought were produced without the necessity for court orders. The parties agreed that the only outstanding issue in the proceedings was costs and that they be dealt with on the papers. Counsel for the plaintiff readily appreciated that that case is materially distinguishable from this case. 6. In this case, Mr Butler-Thompson's affidavit of 29 September 2022 was in response to the application which remained contested. The plaintiff took its own course in determining that it had enough information and gave up, notwithstanding that the documents and records which it sought had not been produced. Whether or not the usual presumption that costs follow the event is applicable in the present instance, which I respectfully think it is (but which I do not for present purposes have to decide), the plaintiff failed in the proceedings. In those circumstances, I consider that the defendant is entitled to its costs and I so exercise the discretion of the Court. 7. The Court orders that the plaintiff is to pay the defendant's costs of the proceedings. 8. I draw attention to r 42.20 of the Uniform Civil Procedure Rules 2005 (NSW), which provides that, if the court makes an order for the dismissal of proceedings, then, unless the court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 July 2023