Garsec v His Majesty The Sultan of Brunei [2007] NSWSC 1201

New South Wales Supreme Court

CITATION : Garsec v His Majesty The Sultan of Brunei [2007] NSWSC 1201

HEARING DATE(S) : 18, 19 and 20 June 2007

JUDGMENT DATE : 31 October 2007

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : McDougall J at 1

DECISION : See paragraph [22] of judgment

CATCHWORDS : COSTS - Of successful application for permanent stay of proceedings - Where discrete issues - Costs apportioned - No question of principle.

Garsec Pty Limited (Plaintiff) PARTIES : His Majesty Sultan Haji Hassanal Bolkiah Mu'izzaddin Waddaulah the Sultan and Yang Di-Pertuan of Brunei Darussalam (First Defendant) Pehin Orang Kaya Shah Bandarhj Awang Mohd Nawawi bin Pehin Orang Kaya Shah Bandar Hj Awang Mohd Taha (Second Defendant)

FILE NUMBER(S) : SC 50183/06

COUNSEL : N C Hutley SC / D R Pritchard SC / S J Free (Plaintiff) J T Gleeson SC / S A Kerr (First and Second Defendants)

SOLICITORS : Swaab Attorneys (Plaintiff) Clayton Utz Lawyers (First and Second Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

McDOUGALL J

31 October

50183/06 GARSEC PTY LIMITED v HIS MAJESTY THE SULTAN OF BRUNEI JUDGMENT (On costs) 1 HIS HONOUR: This judgment deals with the question of costs, consequent upon my decision of 15 August 2007 ([2007] NSWSC 882) that the proceedings should be stayed permanently. The parties have provided written submissions on costs, and have agreed that I should decide the questions of costs without hearing oral submissions. They do not rely on any further evidence on the question of costs.

The competing positions

2 The defendants submit that they have succeeded on the substantial issue – whether the proceedings should be allowed to go forward in this state – that was decided by my earlier judgment. Thus, they submit, costs should follow the event and they should have their costs of the notice of motion (the defendants' notice of motion filed in court on 8 December 2006). Alternatively, the defendants submit (acknowledging the fact that they failed on one discrete issue raised by their notice of motion), they should have 90% of their costs of the notice of motion.