Ibrahim v PERI Australia Pty Limited

[2013] NSWCA 328

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Leave to appeal
3. › Interlocutory decisions
4. › Costs orders
5. › Whether primary judge erred in exercise of discretion as to costs on discontinuance
1. Practice and Procedure
2. › Costs
3. › Discontinuance of proceedings
4. › Principles governing costs orders on discontinuance
5. › Whether party acted reasonably in commencing proceedings
6. › Whether responding party surrendered after interlocutory relief

Quick Take

A factual error by a primary judge in characterising a party's position on discontinuance does not vitiate the exercise of the costs discretion where the real issue in dispute was costs, not discontinuance itself. Where a defendant effectively surrenders at the interlocutory stage by returning goods, the discontinuing plaintiff may be awarded costs even though the proceedings did not proceed to final hearing.