Baller Industries Pty Ltd v Mero Mero Leasing Pty Ltd [2019] NSWSC 1067

Baller Industries Pty Ltd v Mero Mero Leasing Pty Ltd [2019] NSWSC 1067

Because the substantive merits had not been determined, the Court would not conduct a hypothetical trial. The grant of ex parte interlocutory relief showed only that the duty judge was satisfied at that stage as to the requirements for interim relief, not that Baller should receive its costs. Mero Mero's...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
21 August 2019
Procedural Posture
Costs Application Concerning an Ex Parte Interlocutory Injunction Application / Application for Costs After Interlocutory Relief Was Granted and the Substantive Dispute Was Transferred to the Local Court
Outcome
The plaintiff's application for an immediate costs order in its favour was unsuccessful; costs of the interlocutory relief application were ordered to be costs in the cause, and the plaintiff was ordered to pay the defendant's costs of the costs application.
Legal Topics
['costs of Interlocutory Applications' 'ex Parte Interlocutory Injunctions' 'costs in the Cause' 'payable Forthwith Costs Orders' 'gross Sum Costs Orders' 'unreasonable Conduct and Costs']
['civil Procedure' 'costs' 'equity'] ['costs of Interlocutory Applications' 'ex Parte Interlocutory Injunctions' 'costs in the Cause' 'payable Forthwith Costs Orders' 'gross Sum Costs Orders' 'unreasonable Conduct and Costs']

Source-derived case record

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Procedural Posture

Costs Application Concerning an Ex Parte Interlocutory Injunction Application / Application for Costs After Interlocutory Relief Was Granted and the Substantive Dispute Was Transferred to the Local Court

Legal Issues

  1. 1 ['Whether the plaintiff should receive its costs of the interlocutory injunction application, payable forthwith and potentially on a lump sum basis.' "Whether the defendant's pre-commencement conduct was so unreasonable as to justify an adverse costs order despite there having been no hearing on the substantive merits." 'Whether the usual order that costs of the interlocutory injunction application be costs in the cause should be made.' "Whether the plaintiff should pay the defendant's costs of the unsuccessful costs application."]

Ratio Decidendi

Because the substantive merits had not been determined, the Court would not conduct a hypothetical trial. The grant of ex parte interlocutory relief showed only that the duty judge was satisfied at that stage as to the requirements for interim relief, not that Baller should receive its costs. Mero Mero's pre-commencement conduct, although frustrating and subject to criticism for delayed responses, was not so unreasonable as to justify departing from the ordinary costs order for a contested interlocutory injunction where the substantive dispute remains unresolved. Proportionality and the overriding purpose also weighed against encouraging satellite costs litigation. Accordingly, costs of...

Court Disposition

The plaintiff's application for an immediate costs order in its favour was unsuccessful; costs of the interlocutory relief application were ordered to be costs in the cause, and the plaintiff was ordered to pay the defendant's costs of the costs application.

Orders

  • ["Order that the costs of the plaintiff's application for interlocutory relief in this Court be costs in the cause." "Order that the plaintiff pay the defendant's costs of and incidental to the hearing of the plaintiff's unsuccessful application for costs of its application for interlocutory relief in this Court."]