Chapel Road v ASIC (No 3) [2007] NSWSC 1185

New South Wales Supreme Court

CITATION : Chapel Road v ASIC (No 3) [2007] NSWSC 1185 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 05/07/2007

JUDGMENT DATE : 25 October 2007

JUDGMENT OF : Howie J at 1

DECISION : The plaintiff pay the costs of the defendant's motion of and incidental to the hearing before Harrison AscJ and otherwise the costs of the motion be costs in the cause.

CATCHWORDS : Practice and Procedure - Costs following successful appeal against strike application.

LEGISLATION CITED : Corporations Law (now repealed)

CASES CITED : Chapel Road v ASIC [2007] NSWSC 975 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129

PARTIES : Chapel Road Pty Ltd v Australian Securities & Investments Commission

FILE NUMBER(S) : SC 2006/20014

COUNSEL : R.D. Marshall - Appellant J.R. Clarke - Respondent

SOLICITORS : Creagh & Creagh - Appellant Blake Dawson Waldron - Respondent

LOWER COURT JURISDICTION : Supreme Court (Associate Judge)

LOWER COURT JUDICIAL OFFICER : Associate Justice Harrison

LOWER COURT DATE OF DECISION : 29/09/2006

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

THURSDAY 25 OCTOBER 2007

2006/20014 - CHAPEL ROAD PTY LTD v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

JUDGMENT 1 HIS HONOUR: This was an appeal from an Associate Justice striking out a statement of claim on a notice of motion filed by the defendant. On 31 August 2007 the Court gave judgment in this matter. The appeal was allowed in part: see Chapel Road v ASIC [2007] NSWSC 975. The Court stood over the question of costs on the basis that, if there were no agreement between the parties as to the orders that should be made, the parties would file submissions in writing by 14 September 2007. The parties failed to agree on the appropriate order and have both filed written submissions within the specified time. 2 The plaintiff sought damages from the defendant as a result of action taken by the defendant under the provisions of the Corporations Law (now repealed) that for a period of time deprived the plaintiff of a dealer's licence. The licence was eventually restored to the plaintiff as a consequence of action taken in the Administrative Appeals Tribunal. 3 The plaintiff's statement of claim filed on 27 January 2006 relied upon two causes of action: malicious prosecution and misfeasance in public office. By letter dated 8 March 2006 the solicitors for the defendant wrote to the plaintiff's legal representatives stating: