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Dhanush Infotech Pty Ltd v COFP Pty Ltd[2014] QCA 112

Dhanush Infotech Pty Ltd v COFP Pty Ltd[2014] QCA 112








Appeal No 2031 of 2014

DC No 2364 of 2011






COFP PTY LTDRespondent




MONDAY, 19 MAY 2014





MUIR JA:  I order that the application be dismissed and that the applicant’s costs be its costs in the cause in the appeal.  I make those orders in reliance on these considerations.  There is the history of the matter, which I recounted earlier and which I incorporate in these reasons.  One matter that I didn’t mention in relation to the history is the state of the affidavit evidence before the learned primary judge.

I note that the evidence, or much of it, in support of the summary judgment application was on information and belief.  That, of course, is permissible under the rules, but the form in which some of the evidence was deposed to was impermissible.  I don’t wish to take time identifying it all here now, I merely provide an example.  A deponent, when referring to dealings between Mr Munro of the respondent and a gentleman now deceased on behalf of the defendant or a related company, swears that the sources of the information or words to that effect appear on the face of the affidavit.  That assertion is plainly incorrect.  It is necessary in summary judgment applications to take particular care to ensure that the material is in proper form.

After that digression, I return to other matters that I rely on in making the orders.  They include the smallness of the amount in issue, the question now whether in fact there is an amount in issue, the relative simplicity of the matters in issue, the fact that there was payment into Court in the proceedings of $50,000.  That amount is now held in the trust account of the solicitors for the applicant, I’m informed.  It appears in the affidavit material that that amount is not sufficient to cover the applicant’s costs at first instance.

There is no challenge, of course, to that affidavit material, but it seems to me that the amount of the costs incurred are rather disproportionate to the nature of the claims and the way in which they have been prosecuted and defended.  Whether security for costs should be ordered involves the exercise of a discretion.  Here, the considerations I have mentioned have persuaded me that no order for security for costs should be made.  In taking this course, I should make clear that I make no findings or assertions of impropriety in any respect against the legal advisers for the applicant.


Editorial Notes

  • Published Case Name:

    Dhanush Infotech Pty Ltd v COFP Pty Ltd

  • Shortened Case Name:

    Dhanush Infotech Pty Ltd v COFP Pty Ltd

  • MNC:

    [2014] QCA 112

  • Court:


  • Judge(s):

    Muir JA

  • Date:

    19 May 2014

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC2364/11 (No citation)05 Feb 2014Summary judgment for the defendant: Griffin DCJ
QCA Interlocutory Judgment[2014] QCA 11219 May 2014Application for security for costs of the appeal dismissed: Muir JA.
Appeal Determined (QCA)[2015] QCA 103 Feb 2015Appeal dismissed with costs: Holmes JA, Fraser JA, Morrison JA.

Appeal Status

Appeal Determined (QCA)

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