In the matter of Orix Australia Corporation Limited

On 26 November 2020, I heard an interlocutory application brought by the First Defendant, Mr Carter, seeking to strike out numerous paragraphs of the Statement of Claim filed by the Plaintiff, Orix Australia Corporation Limited (“Orix”), under r 14.28 of the Uniform Civil Procedure Rules. By my Judgment delivered on 9 December 2020 ([2020] NSWSC 1770) in respect of that application, I observed (at [33]) that:

Each of Orix and Mr Carter have now made written submissions as to the costs of that application, and there is no real dispute as to the applicable principles. Mr Mackay, who appears for Mr Carter, rightly observes that costs are within the Court’s discretion, pursuant to s 98 of the Civil Procedure Act 2005 (NSW); that rule 42.1 of the Uniform Civil Procedure Rules 2005 (“UCPR”) provides that costs should follow the event; and that UCPR r 42.7 provides that, unless the Court otherwise orders, the costs of an interlocutory application are to be paid and dealt with in the same way as the general costs of the proceedings. Mr Mackay also draws attention to my observation in Re Courtesy Real Estate (NSW) Pty Ltd (2013) 96 ACSR 593; [2013] NSWSC 1666 at [30] that, where the parties had a mixed result in an interlocutory application, that would properly be reflected by an order that costs be costs in the cause.

Mr Bolster, who appears for Orix, referred to McGuirk v University of New South Wales [2011] NSWSC 361 where Johnson J observed that:

Mr Bolster submits that Mr Carter had limited success on the application and that he succeeded in striking out six of the 46 challenged paragraphs in the Statement of Claim, all of which concerned the single issue of the use of the word “illegitimate” and other remaining issues were determined favourably to Orix. Mr Bolster submits that Mr Carter should be ordered to pay Orix’s costs of the application for several reasons, including that other issues took up more of the time required in written submissions and oral submissions than the issue as to the use of the word “illegitimate” in the pleading. He submits that a costs order should be made in favour of Orix because it was “far and away the more successful party on the application”. He submits that, if the Court were minded to fix a percentage of costs, no more than 10% of costs were referable to the issues on which Mr Carter succeeded, and that nothing would warrant a costs order being made in Mr Carter’s favour. Mr Mackay responds that an order for costs in the cause should be made where the parties have had a mixed result, and he also points to several concessions made by Orix, in the course of the application, as to aspects of the pleading.

It seems to me that the parties here achieved a mixed result; the issue as to the use of the term “illegitimate” in several paragraphs of the Statement of Claim was of some significance in the articulation of the case that Mr Carter had to meet, so that his success as to that issue was of some significance to him; and the result of the application is not usefully assessed by an attempt to estimate the time spent on particular issues in oral or written submissions.. For these reasons, I make the order as to costs sought by Mr Carter, that the costs of and incidental to the hearing of the Interlocutory Process on 26 November 2020 be costs in the cause.