Solaris Projects Pty Ltd v Vero Insurance Ltd [2016] NSWSC 542

Supreme Court New South Wales

Medium Neutral Citation: Solaris Projects Pty Ltd v Vero Insurance Ltd [2016] NSWSC 542 Hearing dates: 29 April 2016 Date of orders: 29 April 2016 Decision date: 29 April 2016 Jurisdiction: Common Law Before: Davies J Decision: 1. By consent, Defendant's Notice of Motion dated 28 October 2013 is dismissed.

2. Second Plaintiff to pay the Defendant's costs of the Notice of Motion dated 28 October 2013. Catchwords: COSTS – security for costs – order made – security not paid – motion to dismiss – security paid before motion finally determined – appropriate costs order Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: Solaris Projects Pty Ltd (First Plaintiff) G.A.P. Constructions (Qld) Pty Ltd (Second Plaintiff) AAI Ltd trading as Vero Insurance (formerly Vero Insurance Ltd (Defendant) Representation: Counsel: A Horvath (First Plaintiff) C Harris SC (Second Plaintiff) A S Martin SC & J Hynes (Defendant)

Solicitors: DLA Piper (First Plaintiff) Eakin McCaffery Cox (Second Plaintiff) Carter Newell Lawyers (Defendant) File Number(s): 2011/154276

Judgment 1. On 10 April 2013 orders were made on a Notice of Motion brought by the Defendant, inter alia, that the Second Plaintiff give security within fourteen days for the Defendant's costs in the proceedings by way of bank guarantee in the amount of $250,000.00 in a form acceptable to the Defendant or any such other form as may be acceptable to the Defendant. The amount of the security was not paid within fourteen days nor at all leading to the filing by the Defendant of a Motion on 28 October 2013 seeking an order pursuant to Rule 42.21.3 Uniform Civil Procedure Rules 2005 (NSW) that the Second Plaintiff's claim against the Defendant be dismissed. 2. I embarked on the hearing of this Motion which first took place over two days on 11 and 12 December 2013. It was then necessary to adjourn the Motion part-heard so that other interlocutory issues in the proceedings could be determined elsewhere. The Motion came back to me for the continuation of the part-heard hearing and has been before me on a number of occasions at the end of 2015 and this year. 3. On 27 April 2016 the amount of the security was paid into court. It is not necessary to detail why it was that there were delays in paying the money nor how it came about that the money was eventually paid. The only issue to be determined now is who should pay the costs of the Defendant's Motion. 4. The Second Plaintiff submits that the costs should be the Defendant's costs in the cause. That was put on the basis that if the Defendant was ultimately unsuccessful in the proceedings the costs involved in relation to this Notice of Motion would not have needed to be incurred. 5. It does not seem to me that that provides any proper basis for other than the usual order. Under the order made in 2013 it was clear the security was to be paid within a certain period of time. It was paid very much after that period. That caused the Defendant to issue its Notice of Motion and not unreasonably seek that the proceedings be dismissed. 6. In all of those circumstances the order is that the Second Plaintiff should pay the Defendant's costs of the Notice of Motion filed 28 October 2013. The Notice of Motion filed 28 October 2013 is by consent dismissed.