[2024] NSWSC 1322

Fredon Infrastructure Pty Ltd v Hitachi Rail GTS Australia Pty Ltd (No 2)

Defendant pay plaintiff’s costs of and incidental to the proceeding on ordinary basis

Catchwords

COSTS – party/party – costs orders in interlocutory proceedings – costs in the cause – where judgment entered for the plaintiff – where the defendant seeks its costs in respect of documents produced in answer to plaintiff’s Notice to Produce – where defendant had earlier consented to an order that the costs of its motion seeking to set aside the Notice to Produce be costs in the cause – decline to make costs order sought by defendant

Cases cited

Fredon Infrastructure Pty Ltd v Hitachi Rail GTS Australia Pty Ltd[2024] NSWSC 1244

Legislation cited

Building and Construction Industry Security of Payment Act 1999 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Judgment

[1]
I gave judgment in this matter on 4 October 2024. [1]
[2]
The parties agree that I should make the following orders to give effect to those reasons:
1. (1)
  In respect of the Victoria Cross Station Contract:
2. (2)
  In respect of the Crows Nest Station Contract:
3. (3)
  The Defendant pay the Plaintiff’s costs of and incidental to the proceeding on the ordinary basis.
[3]
I made those orders on 17 October 2024.
[4]
Hitachi also sought the following order:
[5]
On 23 August 2024, Fredon served on Hitachi a Notice to Produce.
[6]
By Notice of Motion filed on 12 September 2024, Hitachi sought to set aside the Notice to Produce in its entirety.
[7]
That motion was returnable before me on 20 September 2024 and was settled on the basis that Hitachi would produce all the documents sought, subject to identified redactions.
[8]
Relevantly, Hitachi agreed to produce documents in Categories (h) and (i) of Fredon’s Notice to Produce, being the categories referred to in Hitachi’s proposed costs order, as follows:
[9]
Those documents were amongst those in Exhibit B referred to at [100] and [101] of my 4 October 2024 judgment, the tender of which I rejected at the hearing.
[10]
On 17 October 2024, my Associate informed the parties that I declined to make the further order sought by Hitachi.
[11]
My reasons for doing so were that, first, Fredon was successful in the proceedings so that costs of and in relation to the proceedings, including the costs of all interlocutory steps, should follow the event.
[12]
In any event, orders for production of the documents in Categories (h) and (i) were made by consent and in circumstances where Hitachi also consented to an order that the costs of its motion seeking to set aside the Notice to Produce be “costs in the cause”. That order necessarily included Hitachi’s costs of complying with the Notice to Produce.
[13]
Further, costs under UCPR r 21.13 are subject to the special rule in UCPR r 42.33 that a costs order should not be made, unless the Court otherwise orders, unless the parties concerned have attempted, but failed, to agree on the amount of costs. That has not been done.
[14]
It is for those reasons that I declined to make the further order proposed by Hitachi.