TOMRA Collection Pty Ltd v Minto [2021] NSWSC 1323

TOMRA Collection Pty Ltd v Minto [2021] NSWSC 1323

There was no good reason to depart from the default position under r 42.19 that the discontinuing plaintiff pay the defendant's costs. Although TOMRA's commencement of proceedings was not unreasonable, Mr Minto had shown willingness to provide undertakings and to modify them, TOMRA was unsuccessful in obtaining the interlocutory restraint it sought, and it was not shown that litigation was necessary to obtain relief unavailable without proceedings. The indemnity principle did not preclude a costs order because there was sufficient doubt that Mr Minto would never be liable for his solicitors' costs and Re.Group had a direct interest in the outcome. TOMRA was therefore ordered to pay Mr...

Jurisdiction
Australia
Judgment Date
18 October 2021
Procedural Posture
Costs Application Following Discontinuance of Proceedings / Determination of Costs After Leave Granted for Plaintiff to Discontinue Its Summons
Outcome
Plaintiff ordered to pay defendant's costs of the proceedings on the ordinary basis.
Legal Topics
['party/party Costs' 'costs Following Discontinuance' 'ucpr R 42.19' 'indemnity Principle' 'post Employment Restraints']
['costs' 'civil Procedure' 'equity'] ['party/party Costs' 'costs Following Discontinuance' 'ucpr R 42.19' 'indemnity Principle' 'post Employment Restraints']

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Procedural Posture

Costs Application Following Discontinuance of Proceedings / Determination of Costs After Leave Granted for Plaintiff to Discontinue Its Summons

Legal Issues

  1. 1 ["Whether TOMRA should pay Mr Minto's costs of the proceedings following discontinuance under r 42.19 of the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether there was a sound positive ground or good reason to depart from the default costs position on discontinuance.' "Whether the indemnity principle precluded a costs order in favour of Mr Minto because Re.Group had agreed to pay costs incurred in the solicitors' engagement with him." "Whether costs should instead be apportioned so that Mr Minto paid TOMRA's costs up to and including 5 August 2021 and TOMRA paid Mr Minto's costs thereafter."]

Ratio Decidendi

There was no good reason to depart from the default position under r 42.19 that the discontinuing plaintiff pay the defendant's costs. Although TOMRA's commencement of proceedings was not unreasonable, Mr Minto had shown willingness to provide undertakings and to modify them, TOMRA was unsuccessful in obtaining the interlocutory restraint it sought, and it was not shown that litigation was necessary to obtain relief unavailable without proceedings. The indemnity principle did not preclude a costs order because there was sufficient doubt that Mr Minto would never be liable for his solicitors' costs and Re.Group had a direct interest in the outcome. TOMRA was therefore ordered to pay Mr...

Court Disposition

Plaintiff ordered to pay defendant's costs of the proceedings on the ordinary basis.

Orders

  • ["Order the plaintiff to pay the defendant's costs of the proceedings on the ordinary basis."]