Supreme Court New South Wales Medium Neutral Citation: Kostov v YPOL Pty Ltd [2016] NSWSC 827 Hearing dates: 20 June 2016 Date of orders: 20 June 2016 Decision date: 20 June 2016 Jurisdiction: Common Law Before: Schmidt J Decision: 1. The hearing of the motion adjourned to 7 July 2016. 2. Ms Kostov to pay first and second defendants' costs thrown away of today on an indemnity basis. Catchwords: PROCEDURE – notice of motion – leave sought to discontinue proceedings – leave not opposed and costs order sought on usual basis – parties later informed that no agreement reached and motion not to be pressed – costs thrown away order sought on an indemnity basis – orders made Category: Procedural and other rulings Parties: Adriana Kostov (Plaintiff) YPOL Pty Ltd (First Defendant) Jeffrey Easton (Second Defendant) Representation: Counsel: Ms M Cairns (First Defendant) Mr A Ivantoff (Second Defendant) Solicitors: Ms A Kostov, unrepresented (Plaintiff) Sparke Helmore Lawyers (First Defendant) Squire Patton Boggs (Second Defendant) File Number(s): 2016/131955 Publication restriction: None EX TEMPORE Judgment 1. HER HONOUR: These proceedings were commenced by statement of claim filed on 29 April 2016 whereby Ms Kostov, the plaintiff, seeks damages for economic and non-economic loss, interest and costs against the two defendants in respect of matters which are pleaded there. The parties have since filed various motions. The most recent of them is a motion of 18 June 2016 by which Ms Kostov sought leave to discontinue the proceedings. That application was made to the duty judge on an urgent basis over the course of the weekend and was listed for hearing today. 2. The leave sought was not opposed but the two defendants sought orders for costs in their favour on the usual basis. In the case of the first defendant an alternative was proposed, namely consent orders which would have left each of those parties to bear their own costs, provided that Ms Kostov agreed to orders which would preclude her bringing further proceedings against the first defendant in respect of the matters dealt with in the statement of claim. 3. I adjourned in order that there could be a discussion as to whether such an agreement could be reached. Upon resumption I was informed that not only could such an agreement not be reached, but that Ms Kostov no longer wished to press her motion. 4. The other parties took the view, in those circumstances, that at the least there should be an order in their favour for costs thrown away of today's proceedings. There were different views as to whether or not the motion should be dismissed or stood over to 7 July, when a number of other motions are listed for hearing. Those motions are three motions filed by Ms Kostov, the first on 2 June by which she seeks default summary judgment, the second motion filed on 6 June by which she seeks default judgment for unliquidated damages and another filed on 7 June by which she seeks leave to amend the statement of claim. The motion filed on 9 June by the second defendant seeks orders setting aside service of the originating process, as well as orders in the alternative as to service. That filed by the first defendant on 7 June seeks orders that the proceedings against it be dismissed or, in the alternative, the statement of claim be struck out. 5. The circumstances are such, having heard all that has fallen from the parties today, that I am satisfied that the appropriate order as to the 18 June motion is that it be not dismissed, but rather be adjourned to be heard on 7 July together with the other motions lying between the parties, together with an order against Ms Kostov that she pay the defendants' costs thrown away as a result of today's hearing. I am well satisfied that that it is just to make a costs order in the circumstances. Not only is it the usual order under the Rules but it is an order which fairness requires in circumstances where she has moved the Court on an urgent basis over the weekend to bring the matter before the Court so that she could discontinue the proceedings. 6. Ms Kostov ought to have well understood that such discontinuance not being agreed between the parties would, in the ordinary course, if leave to discontinue were granted, would be together with an order against her for the costs of the proceedings which she no longer wished to pursue. It is her view as to the unfairness of the defendants' refusal to agree to her view that each party should bear their own costs which, on her explanation, has led her to conclude that she presently does not wish to discontinue the proceedings, but will pursue them. Those circumstances are such that there should be no departure from the usual order as to the costs of the 18 June motion, in her favour. 7. The other parties press for a costs order to be made in their favour on an indemnity basis, given the course of conduct which I have explained. There are various circumstances in which the usual order will be departed from by the Court. In this case it was argued that Ms Kostov's conduct as to the 18 June motion has been entirely unreasonable, so unreasonable that they ought to have their costs on the indemnity basis. I agree. The conduct has been unreasonable so as to warrant the making of an indemnity costs order. 8. Costs orders are not made to punish parties, they are made to recompense parties for the costs of being brought to Court. Every litigant who commences proceedings does so on the basis that under the Rules costs would usually follow the event, so that if they move the Court and bring parties to Court so that they have to incur, costs which they would otherwise not have to incur, then either if they do not wish to pursue the proceedings, or if the proceedings which they bring fail, then costs will follow. 9. There is nothing unfair about that. Costs rules are designed, to the contrary, to ensure that there is fairness as between the parties. Ms Kostov's views as to the unfairness of the parties seeking the usual order in their favour in the event that the proceedings were discontinued, are without foundation on what she has put forward today. 10. In those circumstances what I propose to order is, firstly, to adjourn the hearing of the 18 June motion to 7 July and, secondly, to order Ms Kostov to pay the first and second defendants' costs thrown away of today, on an indemnity basis. 11. I do that so that all of the parties can consider the circumstances of the conflicting orders which they each seek by their various motions, which will be dealt with on 7 July. It is very clearly very much in each of their interests for them to come to some sensible resolution of what has brought them to Court by way of consent orders. I urge them, in fact direct them, to confer as to that possibility prior to 7 July. 12. If any agreement is reached as to the basis on which the motions listed on that day for hearing and, indeed, the proceedings, can be resolved, they should approach the Registrar with the proposed consent orders. 13. I make the earlier orders outlined accordingly. The proceedings are adjourned to 7 July. ********** 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: 26 February 2019