In the matter of Central West Civil Pty Ltd [2023] NSWSC 1145

In the matter of Central West Civil Pty Ltd [2023] NSWSC 1145

Given the supervening event of Mr Vance's serious illness, which rendered XJS unable to engage with the proceedings, there was proper justification to depart from the usual costs order; accordingly, there was to be no order as to costs of the Interlocutory Process. However, CWC unreasonably pressed its costs application in the face of this evidence, justifying an indemnity costs order against it for the costs application.

Parties
Plaintiff: High Quality Asphalts Pty Ltd; Defendant/respondent: Central West Civil Pty Ltd; Applicant: XJS World Pty Ltd
Jurisdiction
Australia
Judgment Date
21 September 2023
Procedural Posture
Costs Application in Corporations (winding Up) Proceedings / Post Discontinuance, Costs Determination
Outcome
No order as to costs of the Interlocutory Process; Defendant to pay the Applicant's costs of the Defendant's costs application on an indemnity basis.
Legal Topics
Costs, Discontinuance of Proceedings, Winding Up Applications, Indemnity Costs
Civil Procedure Corporations Law Costs Discontinuance of Proceedings Winding Up Applications Indemnity Costs

Case Brief

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Parties

High Quality Asphalts Pty Ltd

Plaintiff

Central West Civil Pty Ltd

Defendant/respondent

XJS World Pty Ltd

Applicant

Procedural Posture

Costs Application in Corporations (winding Up) Proceedings / Post Discontinuance, Costs Determination

Legal Issues

  1. 1 Whether costs should be ordered against the discontinuing party upon withdrawal of an interlocutory application for substitution as plaintiff in winding up proceedings
  2. 2 Whether an order for indemnity costs should be made in respect of an unsuccessful costs application

Ratio Decidendi

Given the supervening event of Mr Vance's serious illness, which rendered XJS unable to engage with the proceedings, there was proper justification to depart from the usual costs order; accordingly, there was to be no order as to costs of the Interlocutory Process. However, CWC unreasonably pressed its costs application in the face of this evidence, justifying an indemnity costs order against it for the costs application.

Court Disposition

No order as to costs of the Interlocutory Process; Defendant to pay the Applicant's costs of the Defendant's costs application on an indemnity basis.

Orders

  • No order as to the costs of the Interlocutory Process filed by XJS World Pty Ltd on 16 August 2023.
  • The Defendant, Central West Civil Pty Ltd, pay the costs of XJS World Pty Ltd of and incidental to the costs application brought by Central West Civil Pty Ltd on an indemnity basis, as agreed or as assessed.