Smiths Detection (Australia) Pty Ltd v Basham (Costs) [2020] NSWSC 758

Smiths Detection (Australia) Pty Ltd v Basham (Costs) [2020] NSWSC 758

Rapiscan's success on the plaintiff's strike out motion was a discrete victory giving it the right to maintain its full defence at trial, and that victory would not be affected by the ultimate outcome of the substantive proceedings. The discrete nature of the application and the lack of proximity to final determination justified an order that SDA pay Rapiscan's costs forthwith. Although Basham successfully resisted the strike out motion, his attempted deletion of material in the face of court orders was serious conduct warranting departure from the usual costs order, but not an order requiring him to pay SDA's costs; his costs of the motion should therefore be costs in the cause. The 1...

Jurisdiction
Australia
Judgment Date
29 May 2020
Procedural Posture
Costs Application in Interlocutory Proceedings / On the Papers Following Dismissal of the Plaintiff's Notice of Motion to Strike Out the Defendants' Defences
Outcome
Plaintiff's motion dismissed; costs orders made partly in favour of the second to fourth defendants and partly as costs in the cause for the first defendant.
Legal Topics
['party/party Costs' 'interlocutory Costs Orders' 'costs Payable Forthwith' 'costs in the Cause' 'misconduct Affecting Costs' 'strike Out Application']
['civil Procedure' 'costs'] ['party/party Costs' 'interlocutory Costs Orders' 'costs Payable Forthwith' 'costs in the Cause' 'misconduct Affecting Costs' 'strike Out Application']

Case Brief

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Procedural Posture

Costs Application in Interlocutory Proceedings / On the Papers Following Dismissal of the Plaintiff's Notice of Motion to Strike Out the Defendants' Defences

Legal Issues

  1. 1 ["Whether the plaintiff should pay the second to fourth defendants' costs of successfully resisting the plaintiff's interlocutory strike out motion or whether those costs should be costs in the cause." "Whether the second to fourth defendants' costs should be assessed and payable forthwith." "Whether the first defendant's attempted deletion of material in the face of court orders justified departing from the usual order that the successful party receive costs." 'Whether the costs of the short hearing on 1 November 2019 should be treated as costs of the motion.']

Ratio Decidendi

Rapiscan's success on the plaintiff's strike out motion was a discrete victory giving it the right to maintain its full defence at trial, and that victory would not be affected by the ultimate outcome of the substantive proceedings. The discrete nature of the application and the lack of proximity to final determination justified an order that SDA pay Rapiscan's costs forthwith. Although Basham successfully resisted the strike out motion, his attempted deletion of material in the face of court orders was serious conduct warranting departure from the usual costs order, but not an order requiring him to pay SDA's costs; his costs of the motion should therefore be costs in the cause. The 1...

Court Disposition

Plaintiff's motion dismissed; costs orders made partly in favour of the second to fourth defendants and partly as costs in the cause for the first defendant.

Orders

  • ["SDA is to pay Rapiscan's costs of the Motion." "Rapiscan's costs of the Motion are payable by SDA forthwith." "Basham's costs of the Motion are to be his costs in the cause of the substantive proceedings yet to be heard and determined." "The costs of 1 November 2019 are to be treated as costs of the Motion and...