Challenger Group Holdings Ltd v Concept Equity Pty Ltd (No 2) [2008] NSWSC 1002

New South Wales Supreme Court

CITATION : Challenger Group Holdings Ltd v Concept Equity Pty Ltd (No 2) [2008] NSWSC 1002

HEARING DATE(S) : 04/09/08

JUDGMENT DATE : 24 September 2008

JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

DECISION : Bank guarantees given as security for costs at the trial to remain in force. Orders for costs made but not for interest on costs.

CATCHWORDS : PROCEDURE [497]- Interest on costs- Held that for interest on costs to be ordered there must be evidence of a very real loss on the part of the applicant being out of pocket for moneys advanced to its lawyers for a period of time-Lack of such material in present case- Decline to order interest. PROCEDURE [585]- Costs- Whether the successful defendant/cross-claimant should get costs of expert report- Report not relied on at trial- Contents of report inadmissible- Held that the costs of the report ought not form part of the successful defendant/cross-claimant's costs and that plaintiff/cross-defendant should have its costs of meeting that report. PROCEDURE [665]- Security for costs- Whether bank guarantees provided by plaintiff/cross-defendant as security for costs of trial should be released- Appeal forecast- If appeal is successful, there would be continuing possibility of a call on the bank guarantees for costs at first instance- Bank guarantees should remain in place pro tem.

LEGISLATION CITED : Civil Procedure Act 2005, s 101

Huxley v West London Extension Railway Co (1889) 14 App Cas 26 Lahoud v Lahoud [2006] NSWSC 126 CASES CITED : McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190 Optus Networks Pty Ltd v Leighton Contractors Pty Ltd [2005] NSWSC 156 Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213; 28 ALR 201