Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32

New South Wales Court of Appeal

CITATION: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32

HEARING DATE(S): 17 February 2009

JUDGMENT DATE: 27 February 2009

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 65; Basten JA at 66

(1) Appeal allowed. DECISION: (2) Orders 2 to 5 below set aside. (3) In lieu thereof, order that Parkline pay the applicants' costs of the proceedings not dealt with by any previous costs order, excluding the costs of the hearing on 2 November 2005. (4) Order that Parkline pay the applicants' costs of the leave application and the appeal, and have a certificate of the Suitors' Fund Act 1951 if otherwise eligible.

CATCHWORDS: PROCEDURE – Costs – Discontinuance – Default provision for costs in UCPR 42.19 – Need for reason for departing from the default provision – Primary judge makes costs order in favour of discontinuing plaintiff – Whether decision vitiated by error – Re-exercise of discretion – Whether appropriate to determine outstanding questions of costs prior to considering costs order to be made on discontinuance – Whether circumstance that discontinuance was not tantamount to capitulation justified departing from the default provision – Reasonableness of commencement of proceedings challenged by defendant, and not resolved because of plaintiff's decision to discontinue – Relevance of late application by defendant to amend defence.

Building and Construction Industry Security of Payments Act 1999 Civil Procedure Act 2005 (NSW) LEGISLATION CITED: High Court Rules 1952 (Cth), O 71, r 39 Migration Act 1958 (Cth) Uniform Civil Procedure Rules 2005 (NSW) r 12.1, r 12.3, r 42.1, r 42.19, r 42.10 Trade Practices Act 1974 (Cth)