Entertainment One Films Australia Pty Ltd v Hopscotch Pictures Pty Ltd [2024] NSWSC 365

Supreme Court New South Wales

Medium Neutral Citation: Entertainment One Films Australia Pty Ltd v Hopscotch Pictures Pty Ltd [2024] NSWSC 365 Hearing dates: 13 November 2023 and 28 March 2024 Decision date: 10 April 2024 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) The plaintiffs are to pay the defendants' costs for the period 17 February 2023 to date in connection with: (a) The plaintiffs' proposed amendments to its commercial list statement; (b) The plaintiffs' discovery motion filed on 26 April 2024; (c) The defendants' strike out motion filed on 2 May 2024; (d) The plaintiffs' motion seeking a separate question filed on 2 November 2023, as a gross sum in the amount of $110,000, payable forthwith; (2) The plaintiffs are to pay the defendants' costs incurred prior to 17 February 2023 thrown away by reason of the amendment, as agreed or assessed; (3) The costs order in order (1) above involves the discharge of the following costs orders made in favour of the defendants: (a) Order 4 made on 18 May 2023 (costs of the strike out motion); (b) The costs order made on 13 November 2023 (in connection with the costs of the hearing on 22 September 2023 and 13 November 2023). Catchwords: CIVIL PROCEDURE — Pleadings — Amendment — Leave granted to file proposed amended pleadings exclusive of specific paras due to inadequate particularisation CIVIL PROCEDURE — Discovery — General discovery — Where plaintiff is unable to properly particularise claim without discovery COSTS — Party/Party — Costs orders in interlocutory proceedings – Gross sum costs order — Unnecessarily and unreasonably causing legal expenses to be incurred — Where plaintiffs have persisted in seeking to advance a cause which has limited factual foundation COSTS — Party/Party — Costs orders in interlocutory proceedings — Whether classification as interlocutory or final costs orders affects question of gross sum costs order Legislation Cited: Trade Practices Act 1974 (Cth) Cases Cited: Chaina v Presbyterian Church (NSW) Property Trust (No 6) [2014] NSWSC 1009 Ireland v Retallack (No 2) [2011] NSWSC 1096 Kimberly College Ltd v Thomson [2019] QSC 227 Newcrest Mining Ltd v WA NorthWest Pty Ltd [2022] WASC 315 Proctor v Kalivis [2009] FCA 795 Raffy Nominees Pty Ltd v nib Holdings Ltd (No 2) [2023] NSWSC 1294 WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 Category: Costs Parties: Entertainment One Films Australia Pty Ltd ACN 149 606 726 (First Plaintiff | Cross Defendant) eOne Features (Developments) Limited 09972486 UK company (Second Plaintiff) Hopscotch Features Pty Ltd ACN 135 543 047 (First Defendant) Troy Andrew Lum (Second Defendant | Cross Claimant) Representation: Counsel: C Withers SC with P Abdiel (Plaintiffs | Cross Defendant) DA Hughes (Defendants | Cross Claimant)