In the matter of Synergy Medical Imaging Pty Ltd (No 2)

These reasons for judgment concern the costs of the plaintiffs’ interlocutory process filed on 4 May 2021. On 21 May 2021, I made orders dismissing that interlocutory process save for one aspect of the relief sought by the plaintiffs in respect of the rights to one telephone number and one facsimile number. My reasons for judgment were published on that date: In the matter of Synergy Medical Imaging Pty Ltd [2021] NSWSC 579 (the principal judgment). Terms used in these reasons have the same meaning as in the principal judgment.

As will be apparent from the principal judgment, the telephone and facsimile numbers in relation to which the plaintiffs succeeded were at the periphery of the real issues in dispute, occupied a very small proportion of the evidence and were barely mentioned during the hearing. The plaintiffs lost on every other issue.

After considering all parties’ written submissions in relation to costs that were filed and served on 28 May 2021, I have concluded that the discretion under s 98 of the Civil Procedure Act 2005 (NSW) should be exercised in accordance with the general rule in r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) that costs follow the event. In real terms, the “event” is that the plaintiffs were unsuccessful with the exception of the peripheral issue of the telephone and facsimile numbers, and the Macdougall, Thakorlal and Fernando interests were successful. I do not accept the plaintiffs’ characterisation of the outcome of the proceedings as each party having succeeded “to some extent”. In my opinion, the costs outcome for which the plaintiffs contend – that there be no order as to costs, with the intention that each party bear their own costs – would not fairly reflect the substance of the outcome for the reasons I have just explained. For those reasons, the plaintiffs are to pay the Macdougall, Thakorlal and Fernando interests’ costs of the interlocutory process.

The Gibbs interests adopted the position of the plaintiffs on the interlocutory process, without making additional submissions or occupying additional hearing time. I accept their characterisation of their role in the hearing of the interlocutory process as minimal. The plaintiffs have not sought an order that the Gibbs interests be jointly and severally liable with the plaintiffs for any costs order in favour of the Macdougall, Thakorlal and Fernando interests. Those interests have not sought any costs order against the Gibbs interests. I accept the submission made on behalf of the Gibbs interests that there should be no costs order against them and that they should bear their own costs of the interlocutory process.

For those reasons, I make the following orders: