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[2026] NSWSC 719
Supreme Court of NSW
2026-06-18
Sirtes J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Dynamic Motion Detection Ltd v Vald Pty Ltd (No 2) [2026] NSWSC 719
Hearing dates: 18 June 2026
Date of orders: 18 June 2026
Decision date: 18 June 2026
Jurisdiction: Common Law
Before: Sirtes J
Decision: See [25]
Catchwords: CIVIL PROCEDURE – consequential orders after order for further preliminary discovery – consequent costs orders – no question of principle
Cases Cited: Dynamic Motion Detection Ltd v Vald Pty Ltd [2026] NSWSC 613
Category: Consequential orders
Parties: Dynamic Motion Detection Ltd (First Plaintiff)
Shadowboxer Systems Pty Ltd (Second Plaintiff)
Shadow Boxer International Pty Ltd (Third Plaintiff)
Vald Pty Ltd (Defendant)
Representation: Counsel:
B Lloyd (Plaintiffs)
N Kabilafkas (Defendant)
Solicitors:
HFW Australia (Plaintiffs)
Holding Redlich (Defendant)
File Number(s): 2023/00168801
In this matter I made orders on 29 May 2026 requiring the Respondent to provide further discovery: Dynamic Motion Detection Ltd v Vald Pty Ltd [2026] NSWSC 613. Insofar as it is necessary, I incorporate those reasons herein.
The Plaintiffs were the Applicants on that motion. The Defendant was the Respondent.
The matter has been listed today for the purposes of determining the question of costs consequent upon the application that I heard and determined. Mr Lloyd of Counsel, who appears for the Applicants, has provided the Court with a document styled “Applicants’ Proposed Short Minutes Order”. Mr Kabilafkas of Counsel appears for the Respondent and relies on a different set of short minutes of order.
I have heard short argument from the parties in relation to the apparent differences between those short minutes of order and have considered the affidavit of Mr Covington filed in court that was read without objection. That affidavit contains a letter dated 14 February 2026 sent by HFW Australia to Holding Redlich. Mr Lloyd relies on that letter to seek indemnity costs in relation to the application.
The main points of difference between the proposed orders concern the date upon which the Respondent is to comply with the orders I made on 29 May 2026, what should be done with the costs that will be incurred by the Respondent in giving discovery and, finally, the timeframes for action to be commenced or not commenced (as the case may be) by the Applicants and the consequences thereof.
Dealing first with the time for compliance with the orders I made, Mr Kabilafkas seeks until 18 August 2026. Mr Lloyd opposes that timeframe and unsurprisingly submits that his client is anxious to receive the additional versions of HumanTrak. Mr Kabilafkas submits that the exercise of discovering the additional versions of HumanTrak is intensive and his client wants sufficient time to exhaust all means it can to comply with the order.
Both parties take sensible positions in relation to their respective aspirations. The Applicants want the documents ordered to be provided, bearing in mind how long this matter has been on foot for, and the Respondent wishes to ensure that there is no further contretemps between the parties in relation to the adequacy of discovery.
I will allow the Respondent until 18 August 2026 to provide further discovery. Whilst I appreciate the Applicants’ desire to obtain discovery as ordered as quickly as possible, one thing that, at all costs, ought be avoided in this turgid dispute is any suggestion that the Respondent has not adequately complied with the Court’s orders. That would be a lamentable state of affairs. Finality of this long-standing matter should be encouraged and can be achieved so long as the Respondent has had adequate time to comply with the orders. The Respondent will have little defence, I would imagine, if, despite the amount of time it is given to comply with the orders, it has failed to do so by 18 August 2026.
“3. Costs of this application and of complying with these orders are to be costs in the cause, subject to the Applicants commencing substantive proceedings within six months of the Respondent complying with Order 1.
4. Should substantive proceedings not be commenced within the timeline in order 3:
a. this proceeding is dismissed; and
b. the Respondent is entitled to its costs of the application and of giving discovery as agreed or assessed.”
In substitution therefor, the Applicants move the Court to grant them a further period of time, after the discovery orders have been complied with, to contemplate whether or not they should commence proceedings.
The Applicants seek nine months from the date of the Respondent complying with the order for further discovery to either commence proceedings or not. The Respondent proposes a period of six months. Whilst in the scheme of this matter, having commenced in 2023, that period of time would appear to be relatively trivial, I consider that nine months is excessive. I will allow seven months for the Applicants to decide whether to bring proceedings.
The Applicants seek that the Respondent pay the Applicants’ costs of and incidental to the Notice of Motion on the ordinary basis up to and including 14 February 2026, and on an indemnity basis thereafter. In contradistinction, the Respondent seeks an order that the parties’ costs of the motion be costs in the cause. Simply stated, the Applicants submit that insofar as they succeeded in obtaining an order for further discovery, they should obtain the costs of that event.
I prefer the Applicants’ position subject to one qualification. I will not order that those costs be paid on an indemnity basis after 14 February 2026.
The basis upon which indemnity costs are sought is the offer made in the aforesaid letter dated 14 February 2026. By that letter, HFW offered to resolve the motion by the Respondent providing eight identified versions of HumanTrak, out of what it understood could be up to 24 versions in existence. Those eight versions spanned a period from 1 July 2018 up to at least 1 January 2023. As Mr Lloyd quite properly conceded, that range of dates is broader than the range the subject of the Court’s order. Therefore, it cannot be said that, at least insofar as the date range is concerned, the Applicants have either equalled or bettered the offer contained in the 14 February letter.
Mr Lloyd does, however, say that that is not the end of the matter. He submits that, as part of this compromise, the Applicants did offer to dispense with the need to cross-examine the Respondent’s general counsel. I note in passing that it was because of that very cross‑examination, and the concessions and answers yielded therefrom, that the Applicants ultimately enjoyed the success they did.
I do not consider that the letter of 14 February 2026 is a basis to order indemnity costs. I will order that the Respondent pay the Applicants’ costs of and incidental to the Applicants’ Notice of Motion filed 31 October 2025.
I next deal with the future in terms of what costs could and should be contemplated in relation to the time that the Applicants seek within which to bring proceedings.
The Respondent next seeks an order that it have its costs of giving discovery pursuant to the orders made by me, as agreed or assessed.
Mr Kabilafkas contends, and I should say it could not be a matter of great controversy, that the process of undertaking discovery is an expensive and time-consuming one. He therefore submits that his client ought be compensated for that process by an order for costs. He quite properly says that it is a matter of discretion, as are all matters concerning costs, and therefore highly dependent upon the facts.
The Applicants have made provision for these costs in their proposed orders if they choose not to bring proceedings. They propose that if they institute proceedings within, according to my determination above, seven months, then the costs of these proceedings and the Respondent’s costs of giving preliminary discovery are costs in the cause, but if they choose not to bring those proceedings, then the Applicants are to pay the Respondent’s costs of the proceedings and the costs of giving preliminary discovery on the ordinary basis.
This seems to be a fair compromise and I will order accordingly.
The Respondent’s proposed orders provide for the matter to be relisted before me on 19 February 2027. That was no doubt based upon a six-month period being provided for, rather than the seven-month period I have indicated I am prepared to allow. I will relist the matter on 23 March 2027 to account for this timeframe.
I am also prepared to grant liberty to apply on three days’ notice, as sought.
The Court makes the following orders:
Discovery pursuant to the orders of Sirtes J made on 29 May 2026 of all documents which are, or have been, in the Respondent’s possession, custody or control is to be provided by the Respondent by 18 August 2026.
Orders 3 and 4 of the orders made on 15 December 2023 are set aside.
Subject to [Order 4]:
(a) if the Applicants commence substantive proceedings within 7 months of the Respondent complying with Order 1, then the costs of these proceedings and of the Respondent giving preliminary discovery are costs in the cause; and (b) if the Applicants do not commence substantive proceedings within 7 months of the Respondent complying with Order 1, then the Applicants are to pay the Respondent’s costs of these proceedings and of giving preliminary discovery on the ordinary basis.
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Typographical amendment to cover sheet
Dynamic Motion Detection Ltd
Vald Pty Ltd (No 2)
[2026] NSWSC 613