Buzzle Operations Pty Limited (in liq) v Apple Computer Australia Pty Ltd (No. 2) [2010] NSWSC 490

Procedural Posture

Equity / Consequential Orders Following Judgment on Costs and Interest

Legal Issues

1. 1 ["Whether the defendants should pay the plaintiffs' costs on an indemnity basis for disputing facts in a notice to admit under r 42.8 of the Uniform Civil Procedure Rules" "Whether a special costs order should be made due to plaintiffs' success on the issue of solvency" 'Whether moneys held as security for costs should be released to the defendants before the costs assessment is completed']

Ratio Decidendi

The key principle is that, following the service of a notice to admit facts, and an agreement effectively standing in place of a formal notice disputing facts, r 42.8 applies so as to permit a special costs order. However, if the defendants were not in a position to reasonably assess the truth of the matters when the notice was served, only costs incurred from a reasonable time after relevant material (here, Mr Cook’s expert report) was served should be ordered. The Court ordered that the defendants pay the plaintiffs' costs on the ordinary basis from a month after Mr Cook’s report on those costs relating solely to proof of insolvency; otherwise, the plaintiffs to pay the defendants'...

Court Disposition

Orders made as to costs and interest; applications for indemnity costs refused; payment out of security for costs ordered; further consideration of interest on costs reserved.

Orders

• ['Plaintiffs to pay to the defendants interest at rates set out in Schedule 5 of the Uniform Civil Procedure Rules on the relevant proportion of costs and disbursements actually paid by the defendants, from date of payment until payment by the plaintiffs or further court order.' 'Further consideration of whether...