Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 5) [2020] NSWSC 287

Supreme Court New South Wales

Medium Neutral Citation: Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 5) [2020] NSWSC 287 Hearing dates: 6 and 20 March 2020 Date of orders: 24 March 2020 Decision date: 24 March 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Application for non-party costs order dismissed Catchwords: COSTS – where plaintiff obtained costs order against defendants – application for non-party costs order –defendants now in administration – whether costs order should be made against sole director of and ultimate shareholder of defendants and against another company of which that director was also a director and which had provided financial assistance to defendants – whether costs order should also be made against holding company of defendants

COSTS – whether application for non-party costs order was an application to vary the earlier costs order – where that application neither foreshadowed nor made within 14 days of earlier costs order – whether claim precluded by Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) – whether s 14 of the Civil Procedure Act 2005 (NSW) available to allow claim Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aukuso v Tahan (No 2) [2018] NSWCA 302 Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 Boateng v Dharamdas [2019] NSWCA 233 Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 WLR 2807; [2004] UKPC 39 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd [2019] NSWSC 1069 Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 2) [2019] NSWSC 1248 Hurford Hardwood Kempsey Pty Ltd v Kempsey Timbers (Sawmilling) Pty Ltd (No 3) [2019] NSWSC 1285 Jeffrey & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43 Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 Rodi v Gelonesi [2016] NSWCA 348 Troulis v Vamvoukakis [1998] NSWCA 237 Yu v Cao [2015] NSWCA 276 Category: Costs Parties: Hurford Hardwood Kempsey Pty Ltd (Plaintiff/Cross-Defendant/Applicant) Kempsey Timbers (Sawmilling) Pty Ltd (First Defendant/Cross-Claimant/Respondent) Kempsey Timbers Pty Ltd (Second Defendant/Cross-Claimant/Respondent) Representation: Counsel: M McCall (Plaintiff/Cross-Defendant/Applicant) R Scruby SC with C Ernst (Defendants/Cross-Claimants/Respondents)