Trial judge erred in principle in approach to costs on applications for summary judgment

Clarke J (nem diss): appropriate way for a court to deal with costs of a hard fought summary judgment application which results in the proceedings being remitted to plenary hearing - In both cases the plaintiff/appellant ("ACC") commenced proceedings claiming liquidated sums arising out of lending transactions - the High Court (Barr J.) decided that the low threshold for establishing an arguable defence had been met in both cases and remitted both sets of proceedings for plenary hearing - trial judge concluded that costs should follow the event and awarded the costs of the two motions against ACC - the proper approach to an award of costs in respect of a motion for summary judgment which results in the case being remitted to plenary hearing - extent to which it might be considered appropriate for this Court to interfere with a decision of the trial judge on the question of costs when no challenge is brought as to the correctness of the trial judge's substantive decision to remit both proceedings to plenary hearing - trial judge appeared to take the view that costs followed the event in the sense that a failure on the part of ACC to obtain summary judgment amounted to an "event" on which ACC lost - not the proper approach - the proper question to be asked is as to whether it can be said that ACC acted in a manifestly unreasonable way in failing to agree that the matter should go to plenary hearing - no legitimate basis for suggesting that ACC acted in a manifestly unreasonable way - substitute for the orders of costs made by the trial judge orders that the costs of both motions be costs in the cause.