Narradine Pty Ltd & Anor v Mascot Steel and Tools Pty Ltd & Ors [2012] NSWSC 474

Supreme Court New South Wales

Medium Neutral Citation: Narradine Pty Ltd & Anor v Mascot Steel and Tools Pty Ltd & Ors [2012] NSWSC 474 Hearing dates: 16 April 2012 Decision date: 09 May 2012 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Plaintiffs to pay costs of and incidental to application for security for costs. Catchwords: COSTS - Whether costs should follow the event. Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Cases Cited: - KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 - Ryberg Telecommunications Pty Ltd (in liq) v Optus Mobile Pty Ltd [2011] NSWSC 1268 Category: Costs Parties: Narradine Pty Ltd (First Plaintiff) Douglas Grant Nelson (Second Plaintiff) Mascot Steel and Tools Pty Ltd (First Defendant) Jaskip Pty Ltd (atf The Wright Settlement Trust) (Second Defendant) Stephen John Wright (Third Defendant) Representation: Counsel: P. Newton (First Plaintiff) P. Reynolds (Defendants) Solicitors: ERA Legal (First Plaintiff) Robertson Hyett (Defendants) File Number(s): 11/250151

Judgment 1On 16 April 2012, I delivered judgment in these proceedings directing that the First Plaintiff, Narradine Pty Limited ("Narradine") provide security for the Defendants' costs of the proceedings in such form as may be agreed between the parties, or otherwise in a form to be determined by a Registrar, in two tranches. I noted that, in the ordinary course, costs should follow the event, since the Defendants had been successful in the motion and would not have been put to the costs of the hearing had it not been contested by the Plaintiffs, but indicated that either party could send submissions as to costs to my Associate within 7 days. 2Narradine acknowledges that, subject to limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. However, it points out that, if it is successful in the proceedings, it will be entitled to orders for costs against the unsuccessful Defendants, and contends that the appropriate costs order would be that the Defendants' costs of the motion for security for costs be the Defendants' costs in the cause in connection with Narradine's claim. The Defendants sought an order, in the form which I had foreshadowed in my judgment, that the Plaintiffs pay the Defendants' costs of and incidental to the motion. The Defendants contended that such an order would be made in the ordinary course as a consequence of the principle that costs should follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1; KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189; Ryberg Telecommunications Pty Ltd (in liq) v Optus Mobile Pty Ltd [2011] NSWSC 1268. 3In my view, this is a proper case in which to order that the Plaintiffs pay the Defendants' costs of and incidental to the motion. The Defendants were substantially successful in the motion, in that an order for security for costs was made over the Plaintiffs' opposition. A contested hearing was required because the Plaintiffs resisted the provision of security for costs and they were ultimately unsuccessful in sustaining that position. 4Accordingly, I order that the Plaintiffs pay the costs of and incidental to the application for security for costs heard before me on 16 April 2012, as agreed or as assessed.