Supreme Court New South Wales Medium Neutral Citation: Barescape Pty Ltd & Anor v Bacchus Holdings Pty Ltd [2011] NSWSC 1003 Hearing dates: 9 to 12 August and 15 to 18 August 2011 Decision date: 15 August 2011 Jurisdiction: Equity Division Before: Black J Decision: Plaintiffs/Cross-Defendants to pay Defendants'/Cross-Claimant's costs of the motion Catchwords: COSTS - Costs of motion follow the event Legislation Cited: - Civil Procedure Act 2005 (NSW) - s 61 - Evidence Act - ss 79, 135 Cases Cited: - Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Category: Interlocutory applications Parties: Barescape Pty Ltd atf The Vs Family Trust (First Plaintiff/First Cross Defendant) Anthony Ventura (Second Plaintiff/Second Cross Defendant) Midfielder Pty Ltd (Third Cross Defendant) Bacchus Holdings Pty Ltd atf The Bacchus Holdings Trust (First Defendant/Cross Claimant) Matthew Gordon Higgins (Second Defendant) Representation: Counsel: R.J. Burbidge QC, C.D. Wood (Plaintiffs/ Cross Defendants) J.C. Kelly SC, A.A. Henskens, N.E. Furlan (Defendants/Cross Claimant) Solicitors: Hicksons (Plaintiffs/Cross Defendants) Bilbie Dan (Defendants/Cross Claimant) File Number(s): 09/291437 Judgment 1By motion brought on the first day of the trial in this matter, the Plaintiffs/Cross-Defendants, Barescape Pty Ltd as trustee of the Vs Family Trust and Anthony Ventura, sought orders under s 61 of the Civil Procedure Act 2005 (NSW) that the cross-claim filed by the First Defendant/Cross-Claimant be struck out or, alternatively, a joint expert report dated 6 July 2011 and any supplementary joint expert reports or oral evidence from the experts be struck out, disallowed or rejected and consequential orders. 2After argument in respect of the motion, I delivered my judgment on 10 August 2011 and I ordered that the motion be dismissed. I reserved the question of costs for the parties to make further submissions after they had had the opportunity to read my reasons for judgment and those further submissions have now been made. 3Mr Kelly SC, who appears for the First Defendant/Cross-Claimant contends that costs should follow the event and points out that the motion was unsuccessful and took two days of court time in circumstances that the loss of those days may well have the result that the hearing cannot be completed within the allocated hearing dates. 4Mr Wood, who appears for the Plaintiffs/Cross-Defendants, contends that matters which were the subject of evidence in the motion will also be relevant to the admissibility and weight of evidence and that the motion had been filed where there were issues as to discovery which continued up to the point of the hearing. I accept that there were issues as to the scope of discovery which continued up to the date of the hearing of the motion. However, prior to the argument of the motion before me, a comprehensive affidavit of Robert Faraday-Bensley sworn 8 August 2011 had been filed and served by the First Defendant/Cross-Claimant which provided a very substantial response to the complaints as to discovery made. 5In my view, the matters agitated by the motion were discrete and the two days spent on the motion is time which is lost and which will increase the costs of the hearing. This is sufficient, in my view, to support an order that the Plaintiffs/Cross Defendants should pay the Defendants'/Cross-Claimant's costs of and incidental to the motion. 6I should add, that the result of the motion might well have been predictable having regard to the decision of the Court of Appeal in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230. In my view, the subsisting issues as to discovery were such that they could have been addressed by less extreme remedies than striking out the cross-claim or excluding expert reports and it was therefore unlikely that the Court would exercise its powers in the manner sought in the motion. 7In these circumstances, I consider that the appropriate order is that the Plaintiffs/Cross-Defendants pay the Defendants'/Cross Claimant's costs of and incidental to the motion and I so order. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2011