Mizuho Bank Ltd -v- Mark Anthony Ackroyd [No 2]

HIS HONOUR: On 19 August 2016 I dismissed the defendant’s application for a stay: Mizuho Bank Ltd v Mark Anthony Ackroyd [2016] NSWSC 1148. Only the question of costs remains. I have received written submissions from both parties. The parties are content for me to give judgment on the papers without any further argument.

I see no reason to depart from the usual rule provided in Uniform Civil Procedure Rules 2005 (NSW) Pt 42 r 42.1 that costs follow the event.

I reject the defendant’s submission that there was no event because the motion which it brought was not strictly necessary. The event was the rejection by judgment after argument, that the proceedings could not be prosecuted without leave. That event is formally reflected in the dismissal of the motion, which the defendant thought fit to bring, and which was a convenient vehicle for the determination of the point.

During the hearing, before the Court had had the opportunity closely to examine the authorities, I expressed the view that the arguments appeared to be evenly balanced. The defendant puts that this is a factor relevant to the exercise of my discretion as to costs. I reject the submission. There is no margin by which a party loses on a question of law, or perhaps at all. A loss is a loss.

I reject the defendant’s submission that he should not pay the plaintiff’s costs because the decision contributes to settling the law on the subject. That the decisive rejection of an argument put up by the defendant contributes to settling the law on the subject (if that is the case) is no reason to deprive the plaintiff of its costs of meeting it. It is to be remembered that there was authority in the plaintiff’s favour which the defendant argued, unsuccessfully, was clearly wrong and should not be followed.

The defendant is to pay the plaintiff’s costs of the motion. This will include the costs of, and incidental to, the hearing on 29 July 2016 and the argument as to costs.