In the matter of JC Jewels Pty Ltd ACN 628 983 773 (No 2)

[2024] NSWSC 581

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of JC Jewels Pty Ltd ACN 628 983 773 (No 2) [2024] NSWSC 581

Hearing dates:

On the papers (last written submissions received 13 May 2024)

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Equity - Duty List

Before:

Pike J

Decision:

The plaintiffs pay the defendants’ costs of the claim for interlocutory relief.

Catchwords:

PRACTICE AND PROCEDURE – costs – determination – where plaintiffs’ claim for interlocutory relief has failed – no question of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

In the matter of JC Jewels Pty Ltd ACN 628 983 773 [2024] NSWSC 532

Texts Cited:

Nil

Category:

Costs

Parties:

Craig Miller (First Plaintiff)
Lonn Miller (Second Plaintiff)
CKM FAMILY Pty Ltd ACN 639 368 755 (Third Plaintiff)
JC Jewels Pty Ltd ACN 628 983 773 (First Defendant)
Steven Braun (Second Defendant)
Vincenzo Bonfa (Third Defendant)
Timothy Demmy Sung (Fourth Defendant)
Sung Investments Pty Ltd (Fifth Defendant)
Teresa Braun (Sixth Defendant)

Representation:

Solicitors:
Drayton Sher Lawyers (Plaintiffs)
Tisher Liner FC Law (Defendants)

File Number(s):

2024/147236

Publication restriction:

Nil

JUDGMENT

1. On 7 May 2024, I delivered judgment in these proceedings: see In the matter of JC Jewels Pty Ltd ACN 628 983 773 [2024] NSWSC 532 (Principal Judgment). These reasons assume familiarity with the Principal Judgment and continue to use the terms defined therein.

2. I made the following orders:

1. The plaintiffs’ claim for interlocutory relief set out at paragraphs 5, 9, 10, and 11 of the amended originating process is dismissed.

2. The proceedings are transferred to the Corporations List and listed for directions on Monday 13 May 2024.

3. The parties are to confer and seek to agree an appropriate order as to costs which is to be provided to my Associate by no later than 5 pm on Monday 13 May 2024. Failing agreement, each party is to provide to my Associate by 5 pm on 13 May 2024 any submissions as to costs, such submissions not to exceed 3 pages, whereupon I will determine the question of costs on the papers.

3. At [65] of the Principal Judgment, I expressed a preliminary view on costs, namely that the plaintiffs should pay the defendants’ costs of the claim for interlocutory relief but directed the parties to seek to agree on costs, and failing this, provide brief submissions on costs, such that I would determine the issue on the papers. The parties were not able to agree on costs and provided written submissions dated 13 May 2024.

4. These reasons deal with the question of costs on the claim for interlocutory relief.

Overview of the position on costs

5. As I understand the plaintiffs’ submissions, the plaintiffs contended that they were able to show that the conduct of the defendants in summarily dismissing the plaintiffs from employment by letters emailed over a weekend, is, at least prima facie, oppressive or unfairly prejudicial or discriminatory against the plaintiffs. The plaintiffs cited [48] of the Principal Judgment, where I stated I was prepared to proceed on the basis of there being a prima facie case/serious question to be tried.

6. The plaintiffs further submitted that, at a final hearing of the claim for final relief, there is a strong likelihood that the Court will find that the defendants’ behaviour is in contravention of s 232 of the Corporations Act, and that the plaintiffs’ claim will be vindicated and the final relief which they seek will be granted.

7. Finally, the plaintiffs submitted that they were not acting without good intention or mala fide when claiming interlocutory relief, but that they were seeking to restore the status quo ante in order to continue to earn an income in a business for which the plaintiffs had worked to build for years and to reach an amicable resolution.

8. As such, the plaintiffs’ contended that the appropriate order was that costs be costs in the cause or each party bear their own costs.

9. The defendants contend that, as they were wholly successful in opposing the plaintiffs’ claim for interlocutory relief, costs should follow the event, and that there is no reason to depart from r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

Relevant principles

10. The relevant principles in relation to costs are not in dispute. Section 98 of the Civil Procedure Act 2005 (NSW) provides that, subject to the rules of the Court, costs are within the discretion of the Court. UCPR r 42.1 provides that “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 whole or any part of the costs”.

Decision and orders

11. The submissions of the plaintiffs and the facts of the case do not warrant departure from my preliminary view expressed in the Principal Judgment that the ordinary rule should apply – costs should follow the event.

12. Even if the plaintiffs were to succeed in a final hearing of the matter, the plaintiffs did not succeed in their claim for interlocutory relief. There is no warrant to separate out, in considering the appropriate costs order, the issues of a prima face case and the balance of convenience. The relevant event is that the claim for interlocutory relief failed.

13. The orders of the Court are:

1. The plaintiffs pay the defendants’ costs of the claim for interlocutory relief.

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