Roden v Bandora Holdings Pty Ltd (No 2) [2015] NSWLEC 202

Roden v Bandora Holdings Pty Ltd (No 2) [2015] NSWLEC 202

After the First Respondent moved on its Notice of Motion dated 20 October 2015, the Court indicated that it would not allow the Applicant to call on the Notice to Produce dated 7 October 2015, following which the Applicant withdrew it. This amounted to a determination in favour of the First Respondent and a consequential capitulation by the Applicant. Because the 7 October 2015 Notice to Produce was identical to the 12 June 2015 Notice to Produce, the First Respondent's position had been made clear, and there was no unreasonable conduct by the First Respondent, the usual rule that costs follow the event applied to both Notices of Motion.

Jurisdiction
Australia
Judgment Date
22 December 2015
Procedural Posture
Class 4 Judicial Review Proceedings; Costs Application / Costs Ruling After Substantive Proceedings Dismissed, Determined on Written Submissions and an Agreed Bundle of Documents
Outcome
The First Respondent's costs application was allowed in relation to the Notices of Motion dated 18 June 2015 and 20 October 2015, excluding costs related to the Notice to Produce for Inspection dated 15 October 2015.
Legal Topics
['notices to Produce' 'notices of Motion to Set Aside Notices to Produce' 'costs Follow the Event' 'discretion to Award Costs']
['costs' 'civil Procedure' 'land and Environment Court Proceedings'] ['notices to Produce' 'notices of Motion to Set Aside Notices to Produce' 'costs Follow the Event' 'discretion to Award Costs']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings; Costs Application / Costs Ruling After Substantive Proceedings Dismissed, Determined on Written Submissions and an Agreed Bundle of Documents

Legal Issues

  1. 1 ["Whether the Applicant should pay the First Respondent's costs of preparing Notices of Motion dated 18 June 2015 and 20 October 2015 seeking to set aside Notices to Produce dated 12 June 2015 and 7 October 2015." 'Whether the events on 21 October 2015 amounted to a determination in favour of the First Respondent and a capitulation by the Applicant in withdrawing the Notice to Produce.' 'Whether there was any reason to depart from the usual order that costs follow the event.']

Ratio Decidendi

After the First Respondent moved on its Notice of Motion dated 20 October 2015, the Court indicated that it would not allow the Applicant to call on the Notice to Produce dated 7 October 2015, following which the Applicant withdrew it. This amounted to a determination in favour of the First Respondent and a consequential capitulation by the Applicant. Because the 7 October 2015 Notice to Produce was identical to the 12 June 2015 Notice to Produce, the First Respondent's position had been made clear, and there was no unreasonable conduct by the First Respondent, the usual rule that costs follow the event applied to both Notices of Motion.

Court Disposition

The First Respondent's costs application was allowed in relation to the Notices of Motion dated 18 June 2015 and 20 October 2015, excluding costs related to the Notice to Produce for Inspection dated 15 October 2015.

Orders

  • ["The Applicant pay the First Respondent's legal costs incurred in relation to the Notices of Motion dated 18 June 2015 and 20 October 2015 not including costs related to the Notice to Produce for Inspection dated 15 October 2015."]