Zeng v Mossensons Pty Limited (No 2) [2013] NSWSC 1508

Zeng v Mossensons Pty Limited (No 2) [2013] NSWSC 1508

Although the plaintiffs' failed summary judgment application in the Commercial List was unlikely to surmount the high threshold required, it was not devoid of merit and it exposed deficiencies in the defendants' pleadings, so the appropriate starting point was that the third to seventh defendants' costs be costs in the cause. However, because the defendants' late service of substantial affidavits caused the hearing to extend to a second day, they were denied costs of that day and ordered to pay the plaintiffs' costs of that day in any event. Indemnity costs were refused because the application was a 'near run thing' and the defendants' conduct was unsatisfactory.

Jurisdiction
Australia
Judgment Date
17 October 2013
Procedural Posture
Costs Order Following Dismissal of Application for Summary Judgment / Post Judgment Costs Determination After Plaintiffs' UCPR R 13.1 Summary Judgment Application Was Dismissed
Outcome
Costs orders made partly in favour of the third to seventh defendants as costs in the cause, with the plaintiffs awarded costs of the second day of hearing in any event; indemnity costs refused.
Legal Topics
['costs of Failed Summary Judgment Application' 'commercial List Practice' 'costs in the Cause' 'indemnity Costs' 'late Service of Evidence']
['civil Procedure' 'costs'] ['costs of Failed Summary Judgment Application' 'commercial List Practice' 'costs in the Cause' 'indemnity Costs' 'late Service of Evidence']

Case Brief

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Procedural Posture

Costs Order Following Dismissal of Application for Summary Judgment / Post Judgment Costs Determination After Plaintiffs' UCPR R 13.1 Summary Judgment Application Was Dismissed

Legal Issues

  1. 1 ["What costs order should be made after dismissal of the plaintiffs' application for summary judgment in the Commercial List." "Whether the third to seventh defendants' late service of substantial affidavits justified a special costs order for the second day of hearing or for preparation of the affidavits." 'Whether costs should be awarded on an indemnity basis.']

Ratio Decidendi

Although the plaintiffs' failed summary judgment application in the Commercial List was unlikely to surmount the high threshold required, it was not devoid of merit and it exposed deficiencies in the defendants' pleadings, so the appropriate starting point was that the third to seventh defendants' costs be costs in the cause. However, because the defendants' late service of substantial affidavits caused the hearing to extend to a second day, they were denied costs of that day and ordered to pay the plaintiffs' costs of that day in any event. Indemnity costs were refused because the application was a 'near run thing' and the defendants' conduct was unsatisfactory.

Court Disposition

Costs orders made partly in favour of the third to seventh defendants as costs in the cause, with the plaintiffs awarded costs of the second day of hearing in any event; indemnity costs refused.

Orders

  • ["Subject to order 2, the costs of the plaintiffs' application for summary judgment made in their notice of motion filed on 1 May 2013 will be the third to seventh defendants' costs in the cause." "The third to seventh defendants must pay the plaintiffs' costs of the hearing of the notice of motion on the second day...