Supreme Court New South Wales Medium Neutral Citation: Mizuho Bank Ltd -v- Mark Anthony Ackroyd [No 2] [2016] NSWSC 1258 Hearing dates: Written submissions Decision date: 09 September 2016 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Defendant to pay the plaintiff's costs of the motion. Catchwords: COSTS – Where defendant brought a motion to stay the proceedings incorrectly relying on an inapplicable section of the Corporations Act – no reason to depart from the usual rule that costs follow the event. Legislation Cited: Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Mizuho Bank Ltd v Mark Anthony Ackroyd [2016] NSWSC 1148 Category: Procedural and other rulings Parties: Mizuho Bank Ltd - Plaintiff/Respondent Mark Anthony Ackroyd - Defendant/Applicant Representation: Counsel: G. Ng - Plaintiff/Respondent A.M. Stewart SC with J.C. Conde - Defendant/Applicant Solicitors: Ashurst - Plaintiff/Respondent Thynne + Macartney - Defendant/Applicant File Number(s): 2016/178533 EX TEMPORE Judgment 1. HIS HONOUR: On 19 August 2016 I dismissed the defendant's application for a stay: Mizuho Bank Ltd v Mark Anthony Ackroyd [2016] NSWSC 1148. Only the question of costs remains. I have received written submissions from both parties. The parties are content for me to give judgment on the papers without any further argument. 2. I see no reason to depart from the usual rule provided in Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.1 that costs follow the event. 3. I reject the defendant's submission that there was no event because the motion which it brought was not strictly necessary. The event was the rejection by judgment after argument, that the proceedings could not be prosecuted without leave. That event is formally reflected in the dismissal of the motion, which the defendant thought fit to bring, and which was a convenient vehicle for the determination of the point. 4. During the hearing, before the Court had had the opportunity closely to examine the authorities, I expressed the view that the arguments appeared to be evenly balanced. The defendant puts that this is a factor relevant to the exercise of my discretion as to costs. I reject the submission. There is no margin by which a party loses on a question of law, or perhaps at all. A loss is a loss. 5. I reject the defendant's submission that he should not pay the plaintiff's costs because the decision contributes to settling the law on the subject. That the decisive rejection of an argument put up by the defendant contributes to settling the law on the subject (if that is the case) is no reason to deprive the plaintiff of its costs of meeting it. It is to be remembered that there was authority in the plaintiff's favour which the defendant argued, unsuccessfully, was clearly wrong and should not be followed. 6. The defendant is to pay the plaintiff's costs of the motion. This will include the costs of, and incidental to, the hearing on 29 July 2016 and the argument as to costs. ************ 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: 09 September 2016