In the Matter of Matter of VPlus Superstores Pty Ltd [2012] NSWSC 777

In the Matter of Matter of VPlus Superstores Pty Ltd [2012] NSWSC 777

Leave to discontinue was appropriate because discontinuance did not inhibit the defendants from agitating the matters they wished to raise by cross-claim. Although UCPR r 42.19 would normally make the plaintiffs liable for the defendants' costs on discontinuance, the plaintiffs had achieved practical success in the central claim for possession by being restored to occupation and possession of the premises. The defendants' retaking of possession from administrators was provocative and high risk, and they had been given an opportunity to avoid the application by agreeing to vacate. Accordingly, notwithstanding r 42.19, the defendants had to pay the plaintiffs' costs of the proceedings on 14...

Jurisdiction
Australia
Judgment Date
02 July 2012
Procedural Posture
Equity Division Corporations List / Application by Plaintiffs to Discontinue Proceedings and Determination of Costs
Outcome
Leave granted to the plaintiffs to discontinue the proceedings; defendants ordered to pay the plaintiffs' costs.
Legal Topics
['ucpr R 42.19' 'costs on Discontinuance' "administrators' Possession of Company Premises" 'practical Success']
['civil Procedure' 'costs' 'corporations'] ['ucpr R 42.19' 'costs on Discontinuance' "administrators' Possession of Company Premises" 'practical Success']

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Procedural Posture

Equity Division Corporations List / Application by Plaintiffs to Discontinue Proceedings and Determination of Costs

Legal Issues

  1. 1 ['Whether leave should be granted to the plaintiffs to discontinue the proceedings.' "Whether the usual costs consequence under UCPR r 42.19 should be displaced so that the defendants pay the plaintiffs' costs." 'Whether the plaintiffs had achieved practical success in relation to the claim for possession.']

Ratio Decidendi

Leave to discontinue was appropriate because discontinuance did not inhibit the defendants from agitating the matters they wished to raise by cross-claim. Although UCPR r 42.19 would normally make the plaintiffs liable for the defendants' costs on discontinuance, the plaintiffs had achieved practical success in the central claim for possession by being restored to occupation and possession of the premises. The defendants' retaking of possession from administrators was provocative and high risk, and they had been given an opportunity to avoid the application by agreeing to vacate. Accordingly, notwithstanding r 42.19, the defendants had to pay the plaintiffs' costs of the proceedings on 14...

Court Disposition

Leave granted to the plaintiffs to discontinue the proceedings; defendants ordered to pay the plaintiffs' costs.

Orders

  • ['Grant leave to the plaintiffs to discontinue the proceedings.' "Notwithstanding r 42.19, the defendants pay the plaintiffs' costs of the proceedings on 14 June and today."]