Rema Tip Top Asia Pacific Pty Ltd v Grüterich (No 2) [2019] NSWSC 1692

Supreme Court New South Wales

Medium Neutral Citation: Rema Tip Top Asia Pacific Pty Ltd v Grüterich (No 2) [2019] NSWSC 1692 Hearing dates: On the papers Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Subject to Order 2, order the defendant to pay 90% of the plaintiff's costs of the proceedings on the ordinary basis. 2. Order the defendant to pay the costs of and incidental to the defendant's 6 May 2019 strike-out application on the ordinary basis but without the 10% discount applicable to the balance of the plaintiff's costs by reference to Order 1 above. 3. Note that it has been agreed between the parties that: (a) interest payable by the defendant on the award of damages in the plaintiff's favour (i.e. $336,413.69) is $25,205.27 and (b) the amount payable by the plaintiff in respect of the defendant's long service leave entitlement is $38,393.86 plus interest in the sum of $2,469; 4. Order, pursuant to Orders 4, 5, 6, 7 and 8 of the orders made on 18 November 2019, that: (a) the sum of $40,862.86 (payable to the defendant) is to be set-off against the amounts payable to the plaintiff under Orders 4, 5 and 6 of the orders made on 18 November 2019; (b) the balance payable to the plaintiff out of the HSBC bank account after the set-off is $270,799.44 (payable pursuant to Order 4 of the orders made on 18 November 2019); and (c) the total damages (plus interest) payable by the defendant to the plaintiff after the set-off (i.e., the amounts in (a) and (b) above) is $320,756.10 (payable pursuant to Order 5 of the orders made on 18 November 2019). Catchwords: COSTS — Party/Party — Bases of quantification — Ordinary basis – order that the defendant pay 90% of the plaintiff's costs of the proceedings on the ordinary basis – held 10% discount on the costs order appropriate in circumstances where the defendant had been successful on a discrete issue – separate costs order without any discount in relation to the strike-out motion that was not pressed at the hearing. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59, 98 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18 and 31 Long Service Leave Act 1955 (NSW), s 4(2)(a)(iii) Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Barescape Pty Limited as trustee for the V's Family Trust v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust (No 12) [2012] NSWSC 1591 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 Downer EDI Limited v Gillies [2012] NSWCA 333 Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 282 Fire Containment Pty Ltd v Robins (No 2) [2011] NSWSC 547 Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274 Green Camel Pty Ltd v Urban Ecological Systems Ltd [2017] NSWSC 362 Interwest Ltd v Tricontinental Corporation Ltd (1991) 5 ACSR 621 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 John Arnold's Surf Shop Pty Ltd (in liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; (1979) 4 ACLR 492 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 LMI v Baulderstone (No 2) [2002] NSWSC 72 Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (No 2) [2019] NSWSC 1492 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Rema Tip Top Asia Pacific Pty Ltd v Grüterich (No 2) [2018] NSWSC 899 Rema Tip Top Asia Pacific Pty Ltd v Grüterich [2019] NSWSC 1594 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 Sabah Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 Stena Rederi Aktiebolag v Austal Ships Sales Pty Ltd [2007] FCA 1141 Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 11 ACLR 616; (1987) 73 ALR 289 Category: Costs Parties: Rema Tip Top Asia Pacific Pty Ltd (Plaintiff) Christian Grüterich (Defendant) Representation: Counsel: N Furlan and JC Lee (Plaintiff) J Knackstredt and M Connor (Defendant)