Alphena Pty Limited v PS Securities Pty Limited as Trustee of the Joseph Family Trust (No 2) [2013] NSWSC 647

Supreme Court New South Wales

Medium Neutral Citation: Alphena Pty Limited v PS Securities Pty Limited as Trustee of the Joseph Family Trust (No 2) [2013] NSWSC 647 Hearing dates: 20 May 2013 Decision date: 20 May 2013 Jurisdiction: Equity Division Before: Kunc J Decision: Defendant to pay all of the Plaintiff's costs of and incidental to these proceedings incurred up to an including 4 May 2012 and 70% of those costs incurred thereafter. Category: Costs Parties: Plaintiff: Alphena Pty Limited Defendant: PS Securities Pty Limited as Trustee of the Joseph Family Trust Representation: Counsel: Mr M Condon SC (Plaintiff) Mr D.L. Cook (Defendant) File Number(s): 2011/72723 Publication restriction: nil

EX TEMPORE Judgment 1HIS HONOUR: This is a judgment on a costs application.

Introduction 2I delivered the primary judgment in this matter on 29 April 2013 (Alphena Pty Limited (In Liquidation) v P S Securities Pty Limited as Trustee of the Joseph Family Trust [2013] NSWSC 447). At that time I provided the parties with draft orders for their consideration to give effect to the judgment, and invited submissions as to costs. Having considered those submissions and heard the parties, this judgment deals with those matters.

Summary 3The parties have agreed on the form of orders to give effect to the primary judgment, save as to costs. They are agreed that the defendant should pay the plaintiff's costs up to and including 4 May 2012. As for the costs after that date, the plaintiff submits that costs should "follow the event" so that the defendant should pay the plaintiff's costs on the ordinary basis. 4The defendant takes a diametrically opposed position and submits that the plaintiff should pay the defendant's costs on the indemnity basis. The result is that the defendant should pay 70% of the plaintiff's costs of and incidental to the proceedings incurred on and from 5 May 2012 on the ordinary basis.