Patrick Badges Pty Ltd v Commonwealth of Australia (No. 2) [2002] NSWSC 269

New South Wales Supreme Court

CITATION : Patrick Badges Pty Ltd v Commonwealth of Australia (No. 2) [2002] NSWSC 269 FILE NUMBER(S) : SC 20330/01 HEARING DATE(S) : 27/03/02 JUDGMENT DATE : 8 April 2002

PARTIES : Patrick Badges Pty Ltd v Commonwealth of Australia JUDGMENT OF : Howie J at 1

COUNSEL : M.M. Macrossan - Plaintiff L.V. Gyles - Defendant SOLICITORS : Cowley Hearne, Lawyers - Plaintiff Clayton Utz, Lawyers - Defendant CATCHWORDS : Costs - General Rule - Costs follow the event - transfer of proceedings - Cross-Vesting legislation LEGISLATION CITED : Jurisdiction of Courts (Cross-Vesting) Act 1987 - s 5(2) Wholesome Bake Pty Ltd v Sweetoz Pty Ltd [2001] NSWSC 248 CASES CITED : Bankinvest AG v Seabrook (1988) 14 NSWLR 711 James Hardie & Coy P/L v Barry (2000) 50 NSWLR 357 West's Process Engineering Pty Ltd (Administrator Appointed) v Westralian Sands Ltd (NSWSC, Rolfe J, 6 August 1997) DECISION : Costs in the proceedings to date, other than the costs of the motion, be the costs in the transferred proceedings and that the plaintiff pay the defendant's costs of the motion.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

MONDAY 8 APRIL 2002

20330/01 PATRICK BADGES PTY LTD v COMMONWEALTH OF AUSTRALIA (NO. 2)

JUDGMENT 1 HIS HONOUR: The plaintiff commenced proceedings in this Court for damages arising from a breach of a contract it entered into with the defendant. By Notice of Motion the defendant sought an order either staying the proceedings or transferring them to the Supreme Court of the Australian Capital Territory pursuant to s 5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987. The motion was opposed. 2 On 27 March last I delivered judgment in this matter and made an order transferring the proceedings. I allowed the parties to file written submissions as to the order I should make in respect of the costs of the Notice of Motion. 3 The plaintiff contends that I should order that the costs of the application should be the defendant's costs in the proceedings. This was in effect the order made by Bryson J in Wholesome Bake Pty Ltd v Sweetoz Pty Ltd [2001] NSWSC 248 upon his Honour making an order under s 5(2) transferring proceedings to the Supreme Court of Victoria. 4 In support of that contention the plaintiff made the following submission: "Although his Honour in Wholesome Bake does not express reasons for the order as to costs in that case, it is submitted that such an order is justified and indeed appropriate in the present case given the following: a) It cannot be said that the Plaintiff was not entitled to commence proceedings in New South Wales; b) The defendant's notice of motion sought an order for a stay which was ultimately not proceeded with; c) The decision of the Court was discretionary in the sense of requiring a balancing of the relevant factors, and those factors were relatively evenly balanced." 5 The defendant contends that I should order that the costs of the proceedings to date should be costs in the transferred proceedings, save that the plaintiff should pay the costs of and incidental to the motion. This was the order made in Bankinvest AG v Seabrook (1988) 14 NSWLR 711 when the Court of Appeal ordered that proceedings be transferred under the Act. The defendant points out that the judgment of Bryson J stands alone so far as the order for costs is concerned in that, in so far as it is possible to ascertain the order for costs made by courts which have considered applications similar to that made in the present proceedings, those courts have made orders in favour of the successful party, see for example Bankinvest; James Hardie & Coy P/L v Barry (2000) 50 NSWLR 357; West's Process Engineering Pty Ltd (Administrator Appointed) v Westralian Sands Ltd (NSWSC, Rolfe J, 6 August 1997). In fact Rolfe J varied the order for costs he initially made to ensure that the plaintiff paid the defendant's costs of the motion regardless of the outcome of the transferred proceedings. 6 The defendant submits that there is no reason in the present case why the normal rule should not apply and that the successful party should have an order for costs in its favour. I agree. There was no reason given by Bryson J for departing from that rule in the case before him and there may have been some matter that justified the order in those proceedings and that is not present before me. 7 Notwithstanding that the plaintiff was legally entitled to commence proceedings in this Court, in my view it was not entitled to do so under the terms of the contract into which it entered with the defendant. It was the presence of a clause in the contract conferring jurisdiction on the courts in the ACT in respect of disputes arising under the contract which made the Supreme Court of the Australian Capital Territory the appropriate court to determine the proceedings in the circumstances of the present case notwithstanding the inconvenience caused to the plaintiff by the transfer of the proceedings from this Court. 8 Although the Notice of Motion sought a stay as the order of choice, that order was not pressed before me and the written submissions and oral arguments of both parties addressed only the question whether the proceedings should be transferred. This approach is consistent with what I have been informed in the defendant's submissions: the plaintiff had been notified well before the hearing that the stay was not being sought. 9 The fact that the considerations as to the appropriate court were evenly balanced as between this Court and the Supreme Court of the Australian Capital Territory, putting aside the existence of the jurisdiction clause in the contract, does not seem to me to warrant a departure from the normal rule in relation to costs. 10 I order that the costs in the proceedings to date, other than the costs of the motion, be the costs in the transferred proceedings and that the plaintiff pay the defendant's costs of the motion. **********