Supreme Court New South Wales Medium Neutral Citation: Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health (No 2) [2023] NSWSC 1417 Hearing dates: On the papers; submissions received 15 and 17 November 2023 Date of orders: 21 November 2023 Decision date: 21 November 2023 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Plaintiff to pay the defendants' costs of the application for a separate question Catchwords: COSTS – party/party – unsuccessful application for separate question – whether costs should follow the event Legislation Cited: Procurement (Enforceable Procurement Provisions) Direction 2019 (NSW) Cases Cited: Arch Underwriting Agency (Australia) Pty Ltd v Lexon Insurance Pte Ltd [2020] NSWSC 580 Gordon v Winning Appliances Pty Ltd [2021] NSWSC 173 Lendlease Corporation Ltd v Acciona Infrastructure Asia Pacific Pty Ltd [2021] NSWSC 1546 Macquarie Publications Pty Ltd v Coles Supermarkets Australia Pty Ltd [2020] NSWSC 987 Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health [2023] NSWSC 1343 Skytraders Pty Ltd v Meyer [2023] NSWSC 857 Yaem Pty Ltd as trustee for R & R Discretionary Trust v MMP Industrial Pty Ltd [2023] NSWSC 1080 Category: Costs Parties: Modeus Pty Ltd (Plaintiff/Applicant) Secretary, Ministry of Health (First Defendant/Respondent) Health Administration Corporation (Second Defendant/Respondent) State of New South Wales (Third Defendant/Respondent) Representation: Counsel: M Green SC with A Sapienza (Plaintiff/Applicant) A Cheshire SC with N Condylis (Defendants/Respondents) Solicitors: KCL Law (Plaintiff/Applicant) Norton Rose Fulbright (Defendants/Respondents) File Number(s): 2022/338722 JUDGMENT 1. On 8 November 2023, I refused the application by the plaintiff, Modeus Pty Ltd, to order a separate question of whether the Procurement (Enforceable Procurement Provisions) Direction 2019 (NSW) had been, in the circumstances, engaged. [1] 2. This judgment deals with the question of costs. 3. Notwithstanding its lack of success on the application, Modeus seeks an order that the costs of the separate question application be costs in the cause, or alternatively, be reserved. 4. In support of that application, Modeus submitted that the "usual position in respect of the costs of an interlocutory application … is that the costs … be costs in the cause", citing the decision of Richmond J in Skytraders Pty Ltd v Meyer. [2] 5. However, the "usual position", as I have held in many cases, [3] in relation to a failed application for a separate question is that costs follow the event. Skytraders was not such a matter. [4] 6. The application for a separate question was a discrete aspect of the proceedings. I cannot see how the future conduct of the proceedings will cast any light on what order should now be made in relation to the costs of that application. 7. Further, the evidence shows that the respondents to the motion, the Secretary and Health Administration Corporation, raised, in correspondence, contentions as to why a separate question should not be ordered, which in large part reflect the conclusions to which I came. 8. I order that the plaintiff pay the defendants' costs of the application for a separate question. ********** Endnotes 1. Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health [2023] NSWSC 1343. 2. [2023] NSWSC 857 at [2]. 3. Yaem Pty Ltd as trustee for R & R Discretionary Trust v MMP Industrial Pty Ltd [2023] NSWSC 1080 at [19]; Gordon v Winning Appliances Pty Ltd [2021] NSWSC 173 at [36]; Macquarie Publications Pty Ltd v Coles Supermarkets Australia Pty Ltd [2020] NSWSC 987 at [29]; Lendlease Corporation Ltd v Acciona Infrastructure Asia Pacific Pty Ltd [2021] NSWSC 1546 at [13]; also see Arch Underwriting Agency (Australia) Pty Ltd v Lexon Insurance Pte Ltd [2020] NSWSC 580 at [17] (Ball J). 4. It concerned production of confidential documents: see [1]. 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: 21 November 2023