Big Money World Pty Ltd v Red Hair Entertainment Pty Ltd [2019] NSWCA 29

Big Money World Pty Ltd v Red Hair Entertainment Pty Ltd [2019] NSWCA 29

The applicant discontinued its application for leave to appeal and failed to show any sufficient justification for a different costs consequence under r 42.19(2). The respondents were entitled to take possession under the Supreme Court orders, the applicant did not comply with the undertakings it gave to obtain interlocutory relief restoring possession, and allegations about missing stock were not matters properly to be litigated on the costs application or in the proposed appeal. The Court therefore ordered the applicant to pay the respondents' costs, but declined indemnity costs because the applicant's conduct was not shown on the papers to be so unreasonable as to justify that order.

Jurisdiction
Australia
Judgment Date
25 February 2019
Procedural Posture
Application for Leave to Appeal; Costs Application / Determination on the Papers of Costs After Discontinuance of Application for Leave to Appeal
Outcome
The applicant was ordered to pay the respondents' costs of the application for leave to appeal, including the costs of the costs application; the respondents' request for indemnity costs was not granted.
Legal Topics
['discontinuance of Proceedings' 'costs After Discontinuance' 'application for Alternative Costs Order' 'indemnity Costs' 'undertakings to the Court']
['civil Procedure' 'costs' 'appeals'] ['discontinuance of Proceedings' 'costs After Discontinuance' 'application for Alternative Costs Order' 'indemnity Costs' 'undertakings to the Court']

Case Brief

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Procedural Posture

Application for Leave to Appeal; Costs Application / Determination on the Papers of Costs After Discontinuance of Application for Leave to Appeal

Legal Issues

  1. 1 ["Whether circumstances warranted departure under UCPR r 42.19(2) from the usual position that the discontinuing applicant pay the respondents' costs." 'Whether the respondents acted unreasonably so that each party should bear its own costs.' "Whether the applicant's conduct justified an award of indemnity costs to the respondents."]

Ratio Decidendi

The applicant discontinued its application for leave to appeal and failed to show any sufficient justification for a different costs consequence under r 42.19(2). The respondents were entitled to take possession under the Supreme Court orders, the applicant did not comply with the undertakings it gave to obtain interlocutory relief restoring possession, and allegations about missing stock were not matters properly to be litigated on the costs application or in the proposed appeal. The Court therefore ordered the applicant to pay the respondents' costs, but declined indemnity costs because the applicant's conduct was not shown on the papers to be so unreasonable as to justify that order.

Court Disposition

The applicant was ordered to pay the respondents' costs of the application for leave to appeal, including the costs of the costs application; the respondents' request for indemnity costs was not granted.

Orders

  • ['The applicant must pay the costs of the respondents of the application for leave to appeal including the costs of this application for costs.']