SON HOU ENTERPRISES PTY LTD v BANK OF CHINA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY JA 22 August 1994 [1994] NSWCA 290 Priestley JA The matter presently for decision is what cost order should be made upon a summons for leave to appeal which was filed on 22 July 1994 for hearing on 25 July 1994. The reasons for the summons being filed and for the matter being listed to come on urgently arose from the nature of the proceedings which had began before Santow J when an application was made by a mortgagor for ex parse relief against the mortgagee. The question arose in proceedings before Santow J as to what interlocutory orders should be made to hold the position between the parties pending the resolution of the claim for an injunction. The mortgagor has submitted that in the circumstances it was necessary for it to file the summons for leave to appeal as part of its wish to preserve its position in regard to what orders should be made during the interlocutory period. As it happened before the summons for leave to appeal was disposed of the parties came to an agreement about appropriate orders for dealing with the period between the making of the orders and the hearing of the main proceedings. That made decision of the question raised by the summons for leave to appeal unnecessary. The mortgagor has submitted that it was necessary for it to file a summons for leave to appeal and that the result of the arrangements eventually made before Santow J and the orders that he made in accordance with those directions gave the mortgagor basically what it had been seeking by way of the summons for leave to appeal. Therefore, it is said that the mortgagor should have the cost of the summons for leave to appeal. On the other hand the mortgagee says that no order is being made in the mortgagor's favour under the summons for leave, the order that the Court should make should be simply summons dismissed with costs. I agree with the mortgagor to the extent that from its point of view it was probably necessary for it to file a summons for leave to appeal. That, however, does not take the mortgagor all the way to getting an order for costs. In order to have got its costs on the summons for leave to appeal the mortgagor would have needed to succeed in getting leave and in all likelihood it would have needed also to succeed in the appeal itself. lam by no means persuaded by the material before me that these events would have happened, nor do I think it sensible to embark upon any detailed examination of the likely fate of the summons, and if it were successful, of the appeal. It would be simply a waste of everyone's time to go into those matters. When the parties resolved between themselves the question of the appropriate interlocutory relief the orders they requested the Court to make then did not include any provision as to the cost to date of the proceedings. As I understand the Rules that has the effect that the costs of the interlocutory proceedings before Santow J to that point will be costs in the proceedings themselves. 2 UNREPORTED JUDGMENTS So far as costs in this Court are concerned they are discretionary. For the reasons I have already given I do not think I should give the mortgagor its costs of the summons. On the other hand the matter was resolved in a way consistent with what was being sought by the mortgagor by means of its summons for leave. I think it is proper also to take into account the letter exhibit A which has been placed before me today. In the circumstances I think the appropriate order is simply to dismiss the summons for leave and make no order as to costs. ANGYAL: Before your Honour adjourns, in the order your Honour has made I am instructed to make an application for indemnity costs on this basis that exhibit A, in the claimant's submission, is a Calderbank and the orders that your Honour has just made means that the claimants have been given a result which is not less favourable than that which they offered in that letter. On that basis the claimant's submission is that they are entitled to indemnity costs of today. HIS HONOUR: They are entitled to request me to consider the question of whether they should receive indemnity costs. ANGYAL: Your Honour has put it more appropriately than I have. HIS HONOUR: In the exercise of my discretion I decline to grant indemnity costs. Summons dismissed for leave, declined to grant indemnity costs.