BW1 Esher Pty Ltd atf BW1 Esher Trust v Ravimohan

Category: Procedural rulings

Parties: BW1 Esher Pty Ltd ATF BW1 Esher Trust (Plaintiff/First Cross-Defendant)
Nagaratnam Ravimohan (First Defendant/First Cross-Claimant)
Kwok Hung Suen (Second Defendant/Second Cross-Claimant)
Kit Mui Chu Suen (Second Defendant/Third Cross-Claimant)
Matthew Chung Saint Chow (Third Defendant/Fourth Cross-Claimant)
Phyllis Wai Yin Chow (Third Defendant/Fifth Cross-Claimant)
Kingland Property Investments Pty Ltd (Fourth Defendant/Cross-Claimant on Second Cross-Claim/Applicant)
Lawcover Insurance Pty Ltd (Respondent)
Commercial Legal Solutions Pty Ltd t/as CLS Legal (in liq) (Second Cross-Defendant/Respondent)

Representation: Counsel:
A Harding SC (Respondents)
Solicitors:
Sage Solicitors (Fourth Defendant/Cross-Claimant on Second Cross-Claim/Applicant)
K&L Gates (Respondents)

File Number(s): 2024/00075901

Publication restriction: Nil

JUDGMENT

1. These reasons concern the question of costs of the Fourth Defendant’s Amended Notice of Motion filed 13 August 2025 (F****ourth **Defendant’**s M****otion).

2. The relevant background is as follows.

3. On 5 August 2025, the First to Third Defendants filed a motion seeking, relevantly, the following relief:

(a) under s 500(2) of the Corporations Act 2001 (Cth) for leave to proceed against CLS; and

(b) under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) for leave to proceed directly against Lawcover by joining Lawcover as a cross-defendant.

4. On 13 August 2025 the Fourth Defendant filed a motion relevantly seeking identical relief.

5. The motions were listed for hearing before me on 24 October 2025 in the Real Property Motions list. By that time the issues had narrowed such that the only remaining issue was whether Lawcover Insurance Pty Ltd (Lawcover) should be joined as a party to the proceedings. The issue of leave to proceed had been resolved between the parties.

6. Written submissions on the issue had been prepared on behalf of Lawcover (and its insured Commercial Legal Solutions Pty Ltd trading as CLS Legal (in liq) (CLS)) opposing the motion and from the First to Third defendants in support of it.

7. The written submissions from Lawcover relevantly stated (at paragraph 22):

Motion of the fourth defendant: the result of the first to third defendants’ motion regarding prayers 1 and 2 of the relief sought, must follow for the equivalent paragraphs of the fourth defendant’s amended notice of motion.

8. At the hearing on 24 October 2025 the First to Third defendants, Lawcover and the Fourth Defendant were each represented by counsel. No oral submissions were advanced by counsel for the Fourth Defendant. Nothing was said by counsel for the Fourth Defendant to indicate that the Fourth Defendant’s Motion was not pressed.

9. Having heard argument on the motion, I determined that Lawcover should not be joined as a party at this stage. Senior counsel for Lawcover then stated that Lawcover sought its costs. Counsel for the First to Third defendants said he could not argue against that.

10. Given that I was dealing with the matter in the Friday Real Property List, where other matters were waiting to be heard, I directed the parties to provide short minutes of order to me in chambers, including an order that the First to Third Defendants pay Lawcover’s costs of the motion to join it.

11. On 10 November 2025, I made the following orders in chambers:

1 Pursuant to section 500(2) of the Corporations Act 2001 (Cth), grant leave to the first to fourth defendants, nunc pro tunc from 9 December 2024, to proceed against the second cross-defendant (Commercial Legal Solutions Pty Ltd (in liq) (CLS)) on the claims advanced:

(a) by the first to third defendants in the First Cross Claim filed in these proceedings; and

(b) by the fourth defendant in the Second Cross Claim filed in these proceedings.

…

4 Order in respect of the costs of the Notice of Motion filed on 5 August 2025 by the first to third defendants that:

(a) the first to third defendants pay Lawcover Insurance Pty Ltd’s costs; and

(b) the costs of the application to proceed against CLS pursuant to section 500(2) of the Corporations Act 2001 be costs in the cause.

5. The first to third Defendants’ Notice of Motion filed on 5 August 2025 otherwise be dismissed.

12. The email communication to my Associate at this time made it clear that there was a dispute between the Lawcover and the Fourth Defendant regarding the costs of the Fourth Defendant’s motion.

13. I directed that Lawcover and the Fourth Defendant exchange submissions on costs, which has occurred.

14. The Fourth Defendant contends that Lawcover’s application for costs should not be entertained because senior counsel for Lawcover was heard on costs on 24 October 2025 and made no application for costs against the Fourth Defendant.

15. It was further contended that the Fourth Defendant’s understanding was that no order for costs was made against it because the Fourth Defendant played no real part in the application. Finally, it was contended that the Fourth Defendant had little option but to follow the First to Third Defendants in filing a motion and was “powerless” to prevent the First to Third Defendant’s from pursuing their motion and running it in the manner they did. The effect of this second aspect, as I understood it, was that the Fourth Defendant was not responsible for costs of any significance.

16. Lawcover contended that the Fourth Defendant moved on its motion and succeeded in obtaining leave to proceed against CLS but failed in its attempt to join Lawcover. Costs should follow the event. The Fourth Defendant cannot avoid the costs consequences of its failure simply because it chose not to advance any submissions on the hearing.

17. It was obviously not in dispute that the Court has a broad discretion as to costs.

18. In my view, the appropriate costs order to be made on the Fourth Defendant’s motion are the same as those made in the First to Third defendants’ motion. I reject the Fourth Defendant’s contentions to the contrary.

19. I reject the contention that the Court should not entertain the application because Lawcover was heard on costs on 24 October 2025 and did not seek costs against the Fourth Defendant. In my view this is not a fair characterisation of what occurred on 24 October 2025. As set out above, I was dealing with the argument in the course of a running list with other matters to follow and with the benefit of the written submissions provided by the parties prior to the hearing.

20. After I indicated my ruling that I was against Lawcover being joined, senior counsel indicated, relevantly, that Lawcover sought its costs. Counsel for the First to Third Defendants indicated he could not argue against that, and I asked for short minutes to be provided to my Associate so that I could resume hearing the remainder of the matters in the list. Nothing was said on the question of costs of the Fourth Defendant’s motion.

21. I do not regard anything that occurred on 24 October 2025 during the hearing as foreclosing Lawcover seeking an order for costs as against the Fourth Defendant.

22. The matter was dealt with in the course of a busy Friday list. It is not correct to say that no costs order was made against the Fourth Defendant because it played no real part in the application.

23. Both parties have now had a fair opportunity to be heard on costs.

24. I do not accept the Fourth Defendant’s contention that they had little option but to follow the First to Third Defendants’ motion and was “powerless” to prevent the First to Third Defendants from running their motion as they did. The Fourth Defendant was free to take its own course. It could have decided not to file a motion or not to proceed with it. Instead, it filed a motion and maintained it but left the running of the motion to the First to Third defendants. That is a matter for the Fourth Defendant but it does not provide a basis for the Fourth Defendant to avoid a costs order having lost on the point.

25. Indeed, had the Fourth Defendant succeeded on its motion, they would not have been precluded from seeking the costs of that motion

26. Had the Fourth Defendant wanted to avoid a costs exposure, it should not have filed its motion or not pressed it prior to the hearing on 24 October 2025. It did neither.

27. The orders of the Court are:

28. The Fourth Defendant pay Lawcover Insurance Pty Ltd’s costs of the motion.

29. The costs of the application to proceed against Commercial Legal Solutions Pty Ltd t/as CLS Legal (in liq) pursuant to section 500(2) of the Corporations Act 2001 (Cth) be costs in the cause.

30. The Fourth Defendant’s amended notice of motion filed 13 August 2025 be otherwise dismissed.

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