Primus Telecommunications Pty Limited v Kooee Communications Pty Limited & Anor [2007] NSWSC 444

New South Wales Supreme Court

CITATION : Primus Telecommunications Pty Limited v Kooee Communications Pty Limited & Anor [2007] NSWSC 444

HEARING DATE(S) : 13/04/07

JUDGMENT DATE : 7 May 2007

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : Defendants to pay 75% of plaintiff's costs of the whole of the proceedings on a party party basis

CATCHWORDS : Costs

Primus Telecommunications Pty Limited (Plaintiff) PARTIES : Kooee Communications Pty Limited (First Defendant) SP Telemedia Limited (Second Defendant)

FILE NUMBER(S) : SC 50004/06

COUNSEL : Mr R Garratt QC, Mr D Priestley (Plaintiff) Mr J Duncan (Defendants)

SOLICITORS : Browne & Co (Plaintiff) Sparke Helmore (Defendants)

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

Einstein J

Monday 7 May 2007

50004/06 Primus Telecommunications Pty Ltd v Kooee Communications Pty Limited & Anor JUDGMENT Costs 1 Following the delivery of two judgments [2007] NSWSC 91 and [2007] NSWSC 374 there remains only for decision the question of costs. 2 It is fair to say that the proceedings were vigorously contested. It is fair to say that to a certain extent each party achieved some success. In many ways the principled exercise of the material discretion as to costs inheres in weighing the true measure of the respective successes. 3 The plaintiff submits that the defendants ought pay the plaintiff's costs of the proceedings on an indemnity basis. This submission is based on the propositions that: i. at all material times prior to commencement, and during the currency of these proceedings, to the defendants' knowledge the plaintiff was prepared to resolve all disputes between the parties on a basis that is for all relevant purposes indistinguishable from the court's determinations, (save for one matter, expenses) and in fact to compromise below that.