CMC (Australia) Pty Limited v Jim Sarantinos & ors [2013] NSWSC 873

CMC (Australia) Pty Limited v Jim Sarantinos & ors [2013] NSWSC 873

The plaintiff achieved substantial practical success as a result of bringing the proceedings, as undertakings and concessions were made only after commencement, justifying a departure from the default rule requiring the plaintiff to pay the defendants' costs of discontinuance. However, because the concession was made early to avoid litigation and was commercially sensible in circumstances where the outcome was not inevitable, the proper order is that each party bear its own costs, rather than awarding costs to the plaintiff.

Parties
Plaintiff: CMC (Australia) Pty Limited (ACN 002007427); First Defendant: Mr Jim Sarantinos; Second Defendant: Mr Peter James Gothard; Third Defendant: Timothy James Michael; Fourth Defendant: Rollpress Proplate Group Pty Limited
Jurisdiction
Australia
Judgment Date
01 July 2013
Procedural Posture
Corporations Matter / Costs Determination Following Discontinuance and Settlement
Outcome
Each party bear its own costs of the proceedings upon discontinuance.
Legal Topics
Costs, Discontinuance, Statutory Undertakings, Retention of Title, Administration of Companies
Corporations Law Civil Procedure Costs Discontinuance Statutory Undertakings Retention of Title Administration of Companies

Case Brief

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Parties

CMC (Australia) Pty Limited (ACN 002007427)

Plaintiff

Mr Jim Sarantinos

First Defendant

Mr Peter James Gothard

Second Defendant

Timothy James Michael

Third Defendant

Rollpress Proplate Group Pty Limited

Fourth Defendant

Procedural Posture

Corporations Matter / Costs Determination Following Discontinuance and Settlement

Legal Issues

  1. 1 Whether the Court should depart from the usual rule that the plaintiff pay the defendants' costs on discontinuance where settlement terms required discontinuance and practical success was achieved
  2. 2 Whether the defendants acted unreasonably in failing to provide undertakings prior to proceedings so as to justify a different costs order
  3. 3 Whether the plaintiff obtained substantial success justifying a departure from default costs position

Ratio Decidendi

The plaintiff achieved substantial practical success as a result of bringing the proceedings, as undertakings and concessions were made only after commencement, justifying a departure from the default rule requiring the plaintiff to pay the defendants' costs of discontinuance. However, because the concession was made early to avoid litigation and was commercially sensible in circumstances where the outcome was not inevitable, the proper order is that each party bear its own costs, rather than awarding costs to the plaintiff.

Court Disposition

Each party bear its own costs of the proceedings upon discontinuance.

Orders

  • Pursuant to UCPR r 42.19(2), notwithstanding the plaintiff's discontinuance, each party bear its own costs of the proceedings.