Wonderful Pty Ltd v Faithful Investment Pty Ltd (No 2)

The background to this matter is set out in my earlier judgment. [1] I shall use the same abbreviations here.

The plaintiff, Wonderful Pty Ltd, sought the appointment of a provisional liquidator to the first defendant and a receiver to what I have earlier referred to as “the Trust”. Ultimately, and in circumstances that I outlined in my earlier judgment, the parties came to an arrangement whereby a “less drastic” [2] regime was agreed between the parties.

Nonetheless, the plaintiff sought an order that the second defendant pay its costs of the motion, and, for the reasons that I set out in my judgment of 26 April 2024, I made an order that the second defendant pay the plaintiff’s costs of the motion.

Now, by notice of motion filed on 15 May 2024, the second defendant seeks to have the costs order varied so that it applies only to costs incurred in the period between 15 March 2024 and 26 April 2024; that is, after the date that the motion was set down for hearing before me, up to the date of my judgment.

The basis upon which the second defendant seeks that order is set out in the submissions of Mr Priestley SC and Mr Rodgers, as follows:

It may be that when the plaintiff’s costs are being assessed, questions will arise as to what costs are properly attributable to the plaintiff’s motion, other than to the proceedings themselves. But that is a common feature of costs assessments. What is now proposed is that I make an arbitrary decision to exclude all costs prior to 15 March 2024 in circumstances where it is accepted that it is likely, if not certain, that some costs incurred prior to that day are probably attributable to the motion.

Assuming I have jurisdiction to do so, I see no basis upon which I should or could make the orders proposed.

The order that I make today is that the second defendant’s motion of 15 May 2024 is dismissed with costs.