Hyman v Conway [2007] NSWSC 828

New South Wales Supreme Court

CITATION : Hyman v Conway [2007] NSWSC 828

HEARING DATE(S) : 30/07/07 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 30 July 2007

DECISION : Defendants ordered to pay plaintiff's costs.

CATCHWORDS : PROCEDURE - Costs - Conclusion of separately identifiable and discrete aspect of litigation - Whether costs should follow the event - Whether departure justified by defendants' admission of liability resulting in a shortening of proceedings

Charlie Brown Pty Ltd & anor v Green & ors, NSWSC, unreported, 3 July 1995 CASES CITED : Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1 Australian Hospitality Suppliers' Guide

Alan Winston Hyman - Plaintiff PARTIES : Roger Malcolm Conway - First Defendant Showcase Publications Pty Ltd - Second Defendant

FILE NUMBER(S) : SC 2354/07

COUNSEL : Mr Murr SC/ Mr R Tregenza - Plaintiff Mr M Bloom - Defendants

SOLICITORS : Terence Stern Solicitor - Plaintiff Whittens Lawyers - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

MONDAY 30 JULY 2007

2354/07 ALAN WINSTON HYMAN v ROGER MALCOLM CONWAY & ANOR EX TEMPORE JUDGMENT 1 Before the court was a summons by which Alan Winston Hyman, the plaintiff, sought injunctive relief with respect to the publication of a magazine entitled Australian Hospitality Suppliers' Guide and other relief associated therewith, including an account of profits. 2 A notice of motion was brought before the court this morning seeking an order that the proceedings be dismissed or, in the alternative, that the proceedings be stayed until Mr Hyman joined Associated Media Group Pty Ltd as co-plaintiff or co-defendant with the result that the expedited hearing today would be vacated. I dismissed the notice of motion and indicated I would give full reasons in due course. 3 The parties have been able to compromise the proceedings before the court today. I am asked, by consent, to make orders in terms of paragraphs 1 to 4 and 6 of the summons. The parties having compromised the proceedings, it is common ground that I am relieved from the task of providing the full reasons for my dismissal of the notice of motion. What remains in issue is the question of costs. 4 Mr Bloom, who appears for Roger Malcolm Conway and Showcase Publications Pty Ltd, the defendants, points to the fact that an admission on their behalf was made on 11 July 2007 that they had breached the terms of a deed of share purchase and non-competition in relation to the publication of the Australian Hospitality Suppliers' Guide and it only became apparent to Mr Conway and Showcase on 27 July 2007 the basis upon which Mr Hyman asserted that there was no equitable assignment to Associated Media Group Pty Ltd of the rights under the deed of share purchase and non-competition. That deed adjusted the entitlement to copyright, intellectual property and trademark in certain publications between Mr Hyman, Mr Conway and Showcase. Mr Bloom submits that, notice having been given consequent upon the admission that reliance would not be placed on affidavits served by the defendants other than a solicitor's affidavit, the matter would last for no more than a day. 5 One situation in which a court will depart from the usual rule that costs are payable at the conclusion of the proceedings is where there is a determination of a separately identifiable matter or the completion of a discrete aspect (Charlie Brown Pty Ltd & anor v Green & ors, NSWSC, unreported, 3 July 1995, Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1 at 4 [11]), 6 In my view the proceedings before the court today that have been compromised represent the completion of a discrete aspect of the litigation and it is appropriate to make an order for costs at this juncture. 7 The usual rule is that costs follow the event. The matters raised on behalf of Mr Conway and Showcase do not, in my view, form a proper basis for departing from that rule. If they have had the effect that the hearing has been shortened, that will be reflected in the quantum of the costs to be paid. 8 I therefore make orders in terms of paragraphs 1 to 4 and 6 of the summons and order the defendants to pay the plaintiff's costs of the proceedings today. I stand the matter over before the Registrar at 9.30 am on Monday 6 August 2007.