Western Export Services Inc v Jireh International Pty Ltd [2014] NSWSC 1033

Supreme Court New South Wales

Medium Neutral Citation: Western Export Services Inc v Jireh International Pty Ltd [2014] NSWSC 1033 Hearing dates: On the papers Decision date: 31 July 2014 Jurisdiction: Equity Division - Commercial List Before: Stevenson J Decision: Grant leave to the plaintiff to discontinue the proceedings. Direct the plaintiff to file a notice of discontinuance. Order that the plaintiff pay the defendants' costs of the proceedings. Catchwords: PRACTICE AND PROCEDURE - costs - discontinuance of proceedings - whether plaintiff should pay costs on the ordinary basis Legislation Cited: Uniform Civil Procedure Rules Cases Cited: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 Jireh International Pty Ltd (t/as Gloria Jean's Coffees) v Western Export Services Inc [2011] NSWCA 137 Category: Costs Parties: Western Export Services Inc (Plaintiff) Jireh International Pty Limited (First Defendant) Nabi Saleh (Second Defendant) Peter Irvine (Third Defendant) Representation: Counsel: L Shipway (Plaintiff) T Maltz (Defendants) Solicitors: Koffels Pty Ltd (Plaintiff) Meerkin & Apel Lawyers (Defendants) File Number(s): SC 2014/187050

Judgment

Introduction 1On 24 June 2014 the plaintiff ("WES") commenced proceedings against the defendant ("Jireh") for preliminary discovery pursuant to Uniform Civil Procedure Rules, r 5.3(1)(a). 2In the circumstances that I discuss below, WES now wishes to discontinue the proceedings. 3The matter for consideration is what costs order should be made in the proceedings. 4By reason of UCPR r 42.19(2), WES must pay Jireh's costs "unless the court orders otherwise". WES must show good reason why the usual order should not be made; that is it must demonstrate some "sound positive ground" for the Court to "order otherwise" (for example, per Hodgson JA, with whom Tobias JA agreed, in Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 at [54]). 5WES relies on two grounds to support its submission that the Court should "order otherwise". First WES submits that Jireh precipitated the proceedings by unreasonably failing to respond to WES's "reasonable request" for documents. Second, WES submits that, once the proceedings were on foot, Jireh failed to inform WES that the transactions the subject of WES's enquiry were not going ahead and unreasonably caused WES to incur costs. 6On 18 July 2014, McDougall J, with consent of the parties, ordered that the matter be decided on the papers. The matter has been referred to me for decision. 7In my opinion, WES has failed to make out either of the grounds upon which it relies to support its submission that the Court should "order otherwise". 8The result is that WES should pay Jireh's costs of the proceedings.