Michael Anthony Luxury Cars Pty Ltd v Connexwire Ltd (No 2) [2019] NSWSC 1188

Michael Anthony Luxury Cars Pty Ltd v Connexwire Ltd (No 2) [2019] NSWSC 1188

The defendants were wholly successful on the contested interlocutory application to transfer the proceedings, which was conceptually and procedurally separate from the substantive dispute, and there was no reason to depart from the ordinary rule that costs follow the event. Although the defendants made genuine offers of compromise and took steps to avoid the contested process, the plaintiff's refusal to agree to transfer was not so unreasonable or devoid of legal merit as to warrant the exceptional remedy of indemnity costs. Costs were therefore ordered in favour of the defendants on the ordinary basis, including the costs of the costs dispute.

Jurisdiction
Australia
Judgment Date
10 September 2019
Procedural Posture
Costs / Determination of Costs After Order Transferring Proceedings to the Supreme Court of Queensland
Outcome
The plaintiff was ordered to pay the first and second defendants' costs of the application to transfer the proceedings to the Supreme Court of Queensland on the ordinary basis; indemnity costs were refused.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'indemnity Costs' 'calderbank Offers' 'transfer of Proceedings']
['civil Procedure' 'costs'] ['party/party Costs' 'costs Follow the Event' 'indemnity Costs' 'calderbank Offers' 'transfer of Proceedings']

Case Brief

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Procedural Posture

Costs / Determination of Costs After Order Transferring Proceedings to the Supreme Court of Queensland

Legal Issues

  1. 1 ['Whether the defendants should have their costs of the application to transfer the proceedings to the Supreme Court of Queensland.' 'Whether costs should be costs in the cause or reserved pending determination of the substantive dispute.' 'Whether indemnity costs should be ordered because the plaintiff refused offers to transfer the proceedings and resisted the transfer application.' 'Whether the Court should revisit the District Court costs order concerning a stay motion pending the transfer application.']

Ratio Decidendi

The defendants were wholly successful on the contested interlocutory application to transfer the proceedings, which was conceptually and procedurally separate from the substantive dispute, and there was no reason to depart from the ordinary rule that costs follow the event. Although the defendants made genuine offers of compromise and took steps to avoid the contested process, the plaintiff's refusal to agree to transfer was not so unreasonable or devoid of legal merit as to warrant the exceptional remedy of indemnity costs. Costs were therefore ordered in favour of the defendants on the ordinary basis, including the costs of the costs dispute.

Court Disposition

The plaintiff was ordered to pay the first and second defendants' costs of the application to transfer the proceedings to the Supreme Court of Queensland on the ordinary basis; indemnity costs were refused.

Orders

  • ['The plaintiff, Connexwire Ltd, must pay the costs of the first and second defendants, Michael Anthony Luxury Cars Pty Ltd and Michael John Anthony, of the application to transfer the proceedings to the Supreme Court of Queensland, on the ordinary basis.']