Bitannia Pty Ltd v Parkline Constructions Pty Ltd

[2009] NSWCA 32

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Discontinuance
4. › Default provision for costs under UCPR r 42.19
5. › Whether sound positive ground or good reason for departing from default provision
6. › Whether discontinuance tantamount to capitulation
7. › Uniform Civil Procedure Rules 2005 (NSW), r 42.19
1. Practice and Procedure
2. › Costs
3. › Discontinuance
4. › Reasonableness of commencement of proceedings
5. › Whether court can determine reasonableness of commencement without final hearing on merits
6. › Relevance of unresolved factual disputes
1. Practice and Procedure
2. › Costs
3. › Late amendment of pleadings
4. › Costs consequences of late amendment application
5. › Whether costs of late amendment subsumed by discontinuance costs order
6. › Uniform Civil Procedure Rules 2005 (NSW), r 42.19
1. Practice and Procedure
2. › Appeal
3. › Costs discretion
4. › Re-exercise of discretion on appeal
5. › Whether errors of fact and principle vitiated exercise of discretion below

Quick Take

Under UCPR r 42.19, a discontinuing plaintiff bears the onus of showing sound positive grounds for departing from the default order that it pay the defendant's costs. Where the reasonableness of commencing proceedings is contested and unresolved because of the discontinuance, the court should not find the plaintiff acted reasonably — that question can only be determined at a final hearing. The Lai Qin approach to costs on discontinuance does not directly apply under the UCPR framework. The circumstance that discontinuance is not tantamount to capitulation does not on its own justify departure from the default costs order.