Zhu v Yingle Culture Exchange (Australia) Pty Ltd ACN 113 089 759 (In Liquidation) (No 3)

HIS HONOUR : On 26 February 2010 the Court, as presently constituted, published reasons for judgment the effect of which was to order that the second and third defendants serve a verified list of documents in respect of documents within certain categories. By judgment issued on 21 April 2010 further orders were made for supplementary discovery by the second and third defendants. At the time, the Court ordered that costs be costs in the cause, but granted liberty to the parties to apply for any special or different order as to costs. The plaintiff seeks an order that the second and third defendants pay its costs of the motion forthwith.

The above orders were sought by notice of motion and the plaintiffs were substantially, if not totally, successful on the motion. The motion was heard, there were written submissions and, after the issue of the reasons for judgment, a minor debate, in writing, between the parties, as to the form of the orders that ought to issue, subsequent written submissions, going to supplementary discovery, and finally written submissions as to the question of costs. Principles

The Court is given a broad discretion under s 98 of the Civil Procedure Act 2005 to make orders for the payment of costs: by whom, to whom, and on what basis. Nevertheless, the authorities make clear that the discretion reposed in the Court must be exercised judicially. The general principle is that the power to award costs requires the Court to award costs in accordance with the Rules. The Uniform Civil Procedure Rules 2005, Rule 42.1 provides that if a court makes an order as to costs the court “is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs”.

This Rule embodies the principles that have been established over many years: see for example Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72.

As already stated in this case, the plaintiff was wholly or substantially successful on its motion, and, notwithstanding that the arguments on each side were reasonable, there is no good reason to depart from the ordinary course. The proceedings, commenced by the plaintiff, were reasonably commenced, and they were successful on the subject matter of the proceedings that have been conducted, thus far. In those circumstances they are entitled to an order for costs: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 566-567.

Nothing has been put that would suggest that the order for costs ought to be assessed on a basis other than the ordinary basis. Further, there is no good reason, consistent with principle, as to why the costs should be paid other than in the ordinary way, namely, at the conclusion of the proceedings.

The Court makes the following orders: (i) Order (iii) of 26 February 2010, in this matter, be set aside; (ii) The second and third defendants pay the plaintiffs’ costs of and incidental to the notice of motion filed 21 August 2009, as agreed or assessed; (iii) To the extent not otherwise determined, the aforesaid notice of motion is dismissed.