Supreme Court New South Wales Medium Neutral Citation: Scanlon v Tai [2014] NSWSC 751 Hearing dates: 2 June 2014 Decision date: 02 June 2014 Before: McCallum J Decision: Each party to bear his own costs of the plaintiff's motion. Notice of discontinuance to be filed within 48 hours. Catchwords: COSTS - application by plaintiff to enforce settlement deed - whether the defendant should pay the plaintiff's costs concerning a notice of motion - each party to bear his own costs of the plaintiff's motion Category: Interlocutory applications Parties: Paul Scanlon (plaintiff) David Kie Pang Tai (first defendant) Patrick Harrison (second defendant) Representation: Counsel: M Richardson (plaintiff) T Rickard (defendants) Solicitors: Kemp Strang (plaintiff) CG Taylor & Son (defendants) File Number(s): 2012/47665 Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation which were resolved by agreement between the parties before the hearing of the matter which had been scheduled for last December. The proceedings have come before me several times this year to determine an application by the plaintiff to enforce the settlement deed. That dispute has also been resolved in a fashion, and it remains to be determined who should bear the costs of the application. Briefly, the relevant chronology of events is as follows. 2The Deed of Settlement (executed by the parties on the 12th and 16th respectively of December last year) included a term which required the defendants to pay to the plaintiff the agreed amount of $15,000 on the date defined as "the payment date". That term was refined to mean the date of conveyance of a property or 28 February 2014 - whichever was the earlier. The conveyance did not settle by 28 February and the payment was not made on that date. It was in those circumstances that the plaintiff filed his notice of motion on 21 March 2014 seeking orders enforcing the deed. The notice of motion sought not only payment of the agreed amount, but also sought to enforce a separate term of the deed pursuant to which the defendants had agreed, in summary, to hand over and destroy any information they had collected concerning corporate entities related to the plaintiff. 3The notice of motion was returnable on 7 April 2014. On that date counsel for the defendants argued that the motion was incompetent and that the deed ought to have been enforced by the commencement of separate proceedings in the Equity Division. During the course of argument, however, it was in effect accepted (as I recall it) that that contention was misconceived, and the motion was stood over to 10 April 2014. By that date the defendants had made the payment of $15,000 and served affidavits stating that they did not hold any information of the kind required to be handed over or destroyed in accordance with the deed. 4On 10 April 2014 the plaintiff accepted that the defendant's payment obligation had been complied with. However, he sought an adjournment for the purpose of testing the new evidence as to compliance with the information requirement under the deed. The matter was adjourned again on 5 May 2014 because subpoenas issued by the plaintiff in aid of that relief, had not yet been returned. Ultimately there was "nil return" on subpoenas and notices to produce issued in respect of the information obligation, and the plaintiff now says that he does not wish to take any further course to enforce that requirement under the deed. 5The plaintiff submits that the defendant should pay his costs of and concerning the notice of motion, including the appearances on 7 and 10 April 2014 and the subsequent costs of issuing the subpoenas and the notices to produce. 6Certainly, as to the payment obligation, it is clear on the terms of the deed that the defendants were required to make that payment by 28 February 2014 at the latest, regardless of the fate of the settlement of the conveyance to which I have referred. 7Mr Rickard submitted that that obligation should be regarded in the broader context of a relationship between the parties which is not apparent from the face of the deed. His submissions on that issue prompted me to hold some apprehension that the plaintiff may have taken the course of capitalising on a single breach by the defendants in broader commercial circumstances which, if established, would reveal some unfairness. However, the short point is that the evidence before me does not enable me to determine one way or the other whether there is any proper basis for that suspicion. 8 Accordingly, it is clear enough that the notice of motion, so far as the payment obligation is concerned, should be regarded by me as one the plaintiff was entitled to bring and one on which he has effectively been successful. 9Conversely, however, I note that the information obligation under the deed was the subject of correspondence from the defendants as early as 16 January 2014. On that date, the defendants responded effectively in the same terms as the result that has been achieved by prosecution of an attempt to enforce that obligation. The result is, as submitted by Mr Rickard, that there has effectively been a one-all draw. The fairest course in all the circumstances, in my view, is to order that each party bear his own costs of the plaintiff's motion. 10A notice of discontinuance should be filed within 48 hours. ********** 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: 10 June 2014