[2023] NSWSC 1417
Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health (No 2)
Plaintiff to pay the defendants’ costs of the application for a separate question
Catchwords
COSTS – party/party – unsuccessful application for separate question – whether costs should follow the event
Cases cited
- Arch Underwriting Agency (Australia) Pty Ltd v Lexon Insurance Pte Ltd[2020] NSWSC 580
- Gordon v Winning Appliances Pty Ltd[2021] NSWSC 173
- Lendlease Corporation Ltd v Acciona Infrastructure Asia Pacific Pty Ltd[2021] NSWSC 1546
- Macquarie Publications Pty Ltd v Coles Supermarkets Australia Pty Ltd[2020] NSWSC 987
- Modeus Pty Ltd (ACN 106 986 056) v Secretary, Ministry of Health[2023] NSWSC 1343
- Skytraders Pty Ltd v Meyer[2023] NSWSC 857
- Yaem Pty Ltd as trustee for R & R Discretionary Trust v MMP Industrial Pty Ltd[2023] NSWSC 1080
Legislation cited
- Procurement (Enforceable Procurement Provisions) Direction 2019 (NSW)
Judgment
- [1]
On 8 November 2023, I refused the application by the plaintiff, Modeus Pty Ltd, to order a separate question of whether the Procurement (Enforceable Procurement Provisions) Direction 2019 (NSW) had been, in the circumstances, engaged. [1]
- [2]
This judgment deals with the question of costs.
- [3]
Notwithstanding its lack of success on the application, Modeus seeks an order that the costs of the separate question application be costs in the cause, or alternatively, be reserved.
- [4]
In support of that application, Modeus submitted that the “usual position in respect of the costs of an interlocutory application … is that the costs … be costs in the cause”, citing the decision of Richmond J in Skytraders Pty Ltd v Meyer. [2]
- [5]
However, the “usual position”, as I have held in many cases, [3] in relation to a failed application for a separate question is that costs follow the event. Skytraders was not such a matter. [4]
- [6]
The application for a separate question was a discrete aspect of the proceedings. I cannot see how the future conduct of the proceedings will cast any light on what order should now be made in relation to the costs of that application.
- [7]
Further, the evidence shows that the respondents to the motion, the Secretary and Health Administration Corporation, raised, in correspondence, contentions as to why a separate question should not be ordered, which in large part reflect the conclusions to which I came.
- [8]
I order that the plaintiff pay the defendants’ costs of the application for a separate question.