Supreme Court New South Wales Medium Neutral Citation: Gerard Cassegrain & Co Pty Ltd & Ors v Claude Cassegrain & Anor [2012] NSWSC 397 Hearing dates: 12 March 2012 Decision date: 26 April 2012 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: First Defendant to pay the Plaintiffs' costs of motion Catchwords: COSTS - Costs of motion - Whether costs should follow the event Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 46.11, 46.13 Cases Cited: - Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Category: Costs Parties: Gerard Cassegrain & Co Pty Ltd (First Plaintiff) Denis Cassegrain (Second Plaintiff) Catherine Dunn (Third Plaintiff) Patrick Cassegrain (Fourth Plaintiff) John Cassegrain (Fifth Plaintiff) Claude Cassegrain (First Defendant) Felicity Cassegrain (Second Defendant) Representation: Counsel: M. A. Ashhurst SC (Plaintiffs) G.C. Lindsay SC/P. Bolsper (Defendants) Solicitors: McCabe Terrill (Plaintiffs) Oliveri Lawyers (Defendants) File Number(s): 08/280507 Judgment 1I heard argument in these proceedings concerning the question whether an inquiry ordered by a prior judgment of the Court should proceed on 12 March 2012 and delivered my judgment on 28 March 2012, holding that the inquiry should proceed and making orders to prepare the inquiry for hearing. I directed the parties to serve and deliver to my Associate their respective submissions as to the costs of the application and indicated that, unless either party requested an oral hearing, I would determine the question of costs in Chambers without the need for oral submissions. Each party delivered written submissions as to costs and neither party requested an oral hearing. 2The Plaintiffs noted that, as I have recorded in my judgment delivered on 28 March 2012, their application for an order under r 46.11 of the Uniform Civil Procedure Rules 2005 (NSW) that the inquiry should proceed was resisted by the First Defendant, Mr Claude Cassegrain. The Plaintiffs pointed out Mr Cassegrain was not successful in resisting that application; that the Plaintiffs would not have been put to the time and expenses involved in the determination of the application, had Mr Cassegrain not resisted it; and that it would be consistent with principle, r 42.1 of the Uniform Civil Procedure Rules and would do justice between the parties to order that the costs of the application should follow the event. 3Mr Cassegrain submitted that the costs of the motion should be costs in the proceedings on the basis that the Plaintiffs' motion was required by UCPR r 46.11 and 46.13 and the fact of proceedings in the Court of Appeal. I accept that it was necessary for the Plaintiffs to obtain an order of the Court that the inquiry should proceed, having regard to the terms of UCPR r 46.11. However, the need for substantive argument as to that matter arose because that order was resisted by Mr Cassegrain, and Mr Cassegrain was ultimately unsuccessful in his opposition to that order. In these circumstances, it would be consistent with UCPR r 42.1, with the approach outlined on Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 89 and with the Court's usual practice to make an order for costs in a manner which reflects the event. I consider that such an order should be made. 4Accordingly, I order that the First Defendant, Mr Claude Cassegrain, pay the Plaintiffs' costs of and incidental to the motion heard before me on 12 March 2012, as agreed or as assessed. ********** 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: 03 May 2012