No TasWind Farm Group Inc v Hydro-Electric Corporation

REASONS FOR JUDGMENT 1 At the conclusion of my giving oral reasons in No TasWind Farm Group Inc v Hydro-Electric Corporation (No 2) [2014] FCA 348 I indicated my preliminary disposition to order that the costs of the respondent's application for security for costs be costs in the cause but permitted submissions as to the costs of the application. 2 The Hydro-Electric Corporation submitted that as it had been successful in obtaining an order for security, albeit in a lesser sum than it had sought, costs should follow the event. Counsel for No TasWind Farm Group Inc submitted that the respondent had been only partly successful and costs should be in the cause or, alternatively, the respondent's costs in the cause as had been the course followed by Greenwood J in Newtimber (Operations) Pty Ltd v Tarong Energy Corporation Limited (No 2) [2011] FCA 363. Each party sought leave to make additional written submissions. I granted leave for each to file and serve short written submissions. 3 Both parties filed short submissions. 4 Mr Barclay for the respondent referred to the respondent's preliminary correspondence in which it had invited the applicant to provide security for costs on certain terms or other terms as might be agreed. The applicant had responded by stating it would not provide security on any agreed terms and that any application for an order as to security would be opposed. 5 The respondent's interlocutory application sought inter-alia orders for security for costs in the total amount of $165,000.00 or on such other terms as the court considered appropriate. 6 The court had ordered the applicant to give security for the respondent's costs in the amount of $35,000.00. Mr Barclay submitted that the usual rule is that costs follow the event. The respondent accepted that any execution on costs awarded in its favour should be stayed until the conclusion of the substantive proceedings. There was no reason in those circumstances why the usual order should not be made. 7 In the alternative Mr Barclay submitted that the court should order that the costs of the application be in the respondent's cause. 8 Mr Wood for No TasWind Farm Group Inc submitted the applicant had been successful on most grounds in opposing the respondent's application for security for costs, including the contentions of the respondent that it had not been in trade or commerce and that No TasWind Farm Group Inc was merely a nominal plaintiff and had only a weak case. 9 There was nothing to the respondent's argument that it was only seeking orders on such terms as the court might think appropriate. 10 The respondent had sought security for costs in the sum of $165,000.00 and the court had limited its order for security to the sum of $35,000.00. Neither party had succeeded in obtaining precisely what it sought but the orders that had been made were closer to those it had submitted for it than the Hydro-Electric Corporation. 11 In the circumstances the appropriate order was that costs should be costs in the cause. 12 Alternatively the court might follow the course it had foreshadowed in oral argument (referred to at [2] above) and order that the costs of the application for security be the respondent's costs in the cause.