- Cassegrain v Gerard Cassegrain & Co Pty Ltd

Solicitors: WB Legal (Plaintiff) Dixon Holmes Lawyers (First Defendant) File Number(s): 2019/181433

Judgment

1. By my Judgment delivered on 16 November 2020 ("First Judgment"), I declined to grant leave for the Plaintiff, Ms Lin, to join the Defendants' solicitor, Mr Junn, as party to the proceedings, which had been under way for some 15 months, or file a proposed Amended Statement of Claim which would bring a claim against him, and declined to make a freezing order that was sought against him. By my Judgment delivered on 11 December 2020 ([2020] NSWSC 1884) ("Second Judgment") I granted leave to Ms Lin to file a proposed Amended Originating Process and a revised Amended Statement of Claim, omitting the claims against Mr Junn, and also granted leave under s 237 of the Corporations Act 2001 (Cth) for her to bring a derivative claim in the name of Australian International Yacht Club Pty Ltd, subject to her providing an indemnity as to costs in an agreed form.
2. A question as to the costs of the application remains to be determined. The parties made written submissions as to the question of costs, and agreed that question should be determined on the papers. There was little contest as to the applicable principles. Section 98(1) of the Civil Procedure Act 2005 (NSW) provides that costs are in the discretion of the Court and r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides that, subject to Part 42, if the Court makes any 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 those costs. 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. In McGuirk v University of New South Wales [2011] NSWSC 361, Johnson J observed that: "The discretion as to costs is to be exercised having regard to the circumstances of the particular case, with a view to reaching a just outcome on the question of costs." In Re Mudgee Dolomite and Lime Pty Ltd [2020] NSWSC 1675 at [8], I referred to Short v Crawley (No 40) [2008] NSWSC 1302 at [25]-[33], and observed that costs orders can accommodate the extent to which a successful party has not succeeded on all issues raised.