- Australian Trade Commission v Disktravel

Judgment Background 1The Plaintiffs in these proceedings, HY International (Aust) Pty Ltd ("HY International") and Phoenix Explorer Pty Ltd ("Phoenix"), brought proceedings in respect of matters arising from their interest in the Fifth Defendant, Colorado Products Pty Ltd (in prov liq) ("Colorado"), in mid-2009. HY International is a company associated with Ms Lao Ning Huang (to whom I will refer, without disrespect, as "Helen") and her husband, Mr Huang Yi ("Mr Huang"). Phoenix is a company associated with Mr Kenneth Tan (to whom I will refer, without disrespect, as "Kenneth") and is the trustee of his family trust. The First Defendant in the proceedings is Ms Clare Huang (to whom I will refer, without disrespect, as "Clare") and the Second Defendant is CH Design Solutions Pty Ltd ("CH Design"), a company associated with Clare which was the registered proprietor of the premises occupied by Colorado at relevant times. 2The Plaintiffs sought relief including declaratory relief, orders that certain transaction documents be declared void, compensation, damages for breach of contract, an accounting, remedies in tracing and other relief. By a Cross-Claim filed on 21 September 2012, CH Design claimed unpaid rent in the sum of $49,500, unpaid rates and other expenses and damages in an amount to be determined against Colorado. 3On 16 June 2014, after a hearing over 18 hearing days, I delivered judgment in these proceedings ([2014] NSWSC 789). The Plaintiffs failed in a claim for misleading or deceptive conduct but succeeded in an aspect of their claim relating primarily to the diversion of the business of one customer to another entity, Sorrento Kitchens Pty Ltd. I held that there should be judgment on the Cross-Claim in favour of CH Design against Helen and Kenneth in respect of an amount due for rent on the premises occupied by Colorado. The parties subsequently agreed orders to give effect to the judgment, excluding the question of costs, which were made in Chambers on 14 July 2014 and involved judgment for HY International against Clare for equitable compensation in the amount of $53,001.67 plus interest of $15,138.44, totalling approximately $68,000 and judgment for CH Design against Colorado, Helen and Kenneth in the sum of $33,000 plus interest of $19,006.64, totalling approximately $52,000. 4The parties each lodged extensive written submissions in respect of the question of costs, and there was a further hearing on 5 September 2014. On that date, Clare relied on a further affidavit of her solicitor, Mr Jeffrey Siddle, sworn 4 September 2014. The matter was adjourned, after the parties had made their substantive submissions, to allow the Plaintiffs to lead evidence in response and further submissions, if they wished to do so, but the Plaintiffs ultimately chose not to lead such evidence and the further hearing date was vacated. The relevant principles 5There was no substantial dispute between the parties as to the applicable principles, although each invoked aspects of those principles to support their respective positions. Section 98 of the Civil Procedure Act 2005 (NSW) relevantly provides that: "Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court; and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis." The making of a costs order involves a broad evaluative exercise, requiring an assessment of what is fair and reasonable in all of the circumstances: Australian Trade Commission v Disktravel [2000] FCA 62 at [5]; McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 at [22] - [24]. 6Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") in turn provides that: "Subject to this part, 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 the whole or any part of the costs." The Plaintiffs point out that the "event" for the purposes of r 42.1 encompasses both the overall outcome of the litigation and the parties' success on distinct issues: HP Mercantile Pty Ltd v Dierickx (No 2) [2012] NSWSC 1430 at [4]. The Plaintiffs refer to the observation of Ball J in Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2014] NSWSC 733 at [18] that the "event" is "generally taken to be the practical outcome of the proceedings". In King v Benecke [2014] NSWSC 957 at [10], Harrison J similarly noted that: "The "event" extends to any disputed question of fact or law and the notion is not limited to issues in the technical pleading sense .... Once the successful party has been identified by reference to an event, the "commencing position" is that it is ordinarily appropriate to award the costs of proceedings to the successful party without attempting to differentiate between the particular issues on which it was successful and those on which it was not ..." (citations omitted) 7In Traderight above, Ball J also dealt (at [22]) with the question whether an issue was sufficiently discrete to attract a special costs order and observed that: "Whether an issue is sufficiently discrete so as to attract a special costs order involves a question of characterisation that must be considered in the particular context of the case. It is not limited to cases where separate claims are made. It can relate to any disputed question of fact or law ... Nonetheless, the court should be hesitant to depart from the general principle that costs should follow the event ..." (citations omitted) 8In Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38], the Court of Appeal observed that, where there are multiple issues in a case, the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. The Court there also pointed to several circumstances in which a different approach might be justified, and noted (at [38]) that: "Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the Court, which powers should be liberally construed." In Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 at [28]-[31], in a passage recently approved by McDougall J in The Owners - Strata Plan 61162 v Lipman [2014] NSWSC 622 at [241], Hammerschlag J referred to the general rule and to cases where its application may be displaced. 9There may be sufficient justification to depart from the usual order to reflect the party's failure on particular issues if a particular issue or group of issues on which a successful party failed was clearly dominant or separable, or took up a significant part of the trial, either by way of evidence or argument: Waters v P C Henderson (Australia) Pty Ltd [1994] NSWCA 338; (1994) 254 ALR 328 at 331; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31]-[33]; Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [6]-[7]; King v Benecke above at [12]-[13]; Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [17]. Conversely, the Defendants rely on the proposition in Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 at [20], to which reference was made in Traderight (NSW) Pty Ltd v Bank of Queensland above at [18], that: "A successful party may be deprived of costs and ordered to pay the other party's costs, in respect of an issue lost by the successful party, where that issue was clearly dominant or severable." 10Where a successful party fails on particular issues, it may be reasonable in the circumstances that it bear the expense of litigating that portion of the case on which it failed and it may not only be deprived of the cost of those issues but also ordered to pay the other party's costs of them: Hughes v Western Australian Cricket Association (Inc) (1986) 8 ATPR 40-748 at 48,136. Such an order may be more appropriate where an unsuccessful claim took a significant part of the trial, by evidence or argument: Elite Protective Personnel Pty Ltd v Salmon (No 2) above at [6]-[7]. The Court will generally take a relatively broad brush approach, largely as a matter of impression and evaluation, where there has been a mixed outcome in proceedings and costs should be apportioned as between different issues: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22. In King v Benecke above, Harrison J also observed (at [37], [45]) that, where costs ordinarily follow the event, the discretionary apportionment of costs between successful and unsuccessful claims and issues will be out of the ordinary and that: "... except in special circumstances, a court should not attempt to differentiate between issues on which a party succeeded and those on which it failed in substitution for application of the usual rule. A differential costs order is more likely to follow in the exercise of the costs discretion where the issue or issues on which the otherwise successful party lost was "clearly dominant" or "separable". However, a differential costs order does not automatically follow if the exception is available. The exercise of the court's discretion as to costs requires an assessment of what is fair and reasonable in all of the circumstances ... It will be apparent that if costs ordinarily follow the event, the discretionary apportionment of costs between successful and unsuccessful claims and issues will be out of the ordinary. To some extent there is an unavoidable circularity in the equation, because the outcome to a great extent depends upon identifying "the event". The issue is not to be decided by discarding common sense or ignoring what is reasonable. Nor should one lose sight of the fact that the conduct of litigation is inherently perilous and unpredictable so that the self-defensive positions reasonably adopted by parties in the early stages of a case and before the outcome is known ought not always or necessarily with the benefit of hindsight be regarded as unreasonable." (citations omitted) 11Some cases have also expressed the view that the principle that a successful party may be deprived of costs and ordered to pay the other party's costs, in respect of issues lost by the successful party which are clearly dominant or severable, operates more strongly against a successful plaintiff: Griffith v Australian Broadcasting Corporation (No 2) above at [19]-[20], [38]-[39]; Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 at [9]-[10]. The parties' positions 12The Plaintiffs submit that the appropriate orders as to costs is that the Defendants should pay their costs of and incidental to their claims for breach of duty and breach of contract and should pay their costs of and incidental to the assignment of certain causes of action to them; the Cross-Defendants should pay the Cross-Claimants' costs of the Cross-Claim; and orders in relation to reserved costs should be made in a specified manner. 13On the other hand, the Defendants submit that HY International succeeded only on a cause of action assigned to it by Colorado in an amount of $53,000 plus interest; it otherwise failed, including on all its own causes of action; Phoenix was wholly unsuccessful; CH Design was wholly successful in its defence of the proceedings brought by the Plaintiffs; the Further Amended Statement of Claim was dismissed, other than for the judgment in favour of HY international for equitable compensation in the amount of $53,000 plus interest; and the Cross-Claim succeeded against all Cross-Defendants. The Defendants submit that the Plaintiffs should pay all of their costs of defending the misleading or deceptive conduct claim; that the Plaintiffs should pay 50% of their costs of defending the balance of the Plaintiffs' claims, including the breach of duty and contract claims; and that effect should be given to those orders by directing that, subject to specified matters, the Plaintiffs should pay 80% of the Defendants' costs of the Plaintiffs' claims. Costs of the primary issues in the proceedings 14The Plaintiffs submit that it would be inappropriate to apportion costs between the primary issues in the proceedings. They point to policy considerations against dissuading litigants from canvassing all material issues and to authority that the discretion to apportion costs as between different issues is one that should be exercised only in exceptional circumstances, and submit that an issue by issue approach will fail to account for the varying time taken up by each issue or give weight to the monetary value of each contention. 15The Plaintiffs also refer to a list of issues provided prior to the commencement of the trial and substantially adopted by the Defendants, which identified issues as to whether Clare had engaged in misleading or deceptive conduct; whether she had breached her fiduciary and statutory duties owed to Colorado; whether she had breached the terms of a Shareholders Agreement; whether corporate entities associated with her had been knowingly concerned in her alleged breaches of duties; the position in respect of certain proportionate liability claims, which ultimately did not need to be determined; the question of relief in respect of the misleading or deceptive conduct claim and the breach of duty claims; and whether Colorado, Helen and Kenneth were liable for outstanding rent. They submit that their claims fell into two broad areas, namely, the claim in misleading or deceptive conduct and the claim for breach of duty and breach of contract. 16Next, the Plaintiffs submit that, within those broader areas, a variety of issues were decided, but contend that "objectively no party achieved overall success on the Plaintiffs' claim, although the Plaintiffs did achieve part of the relief they sought in the Further Amended Statement of Claim". They submit that each party can fairly be said to have been faced "with a mixture of success and failure", within the language of Sydney Attractions Group Pty Ltd v Frederick Schulman (No 3) [2013] NSWSC 1544 at [6]. They submit that, whereas the Defendants achieved overall success on the misleading or deceptive conduct claim, the Plaintiffs achieved overall success on the breach of duty and breach of contract claim and were the "true victors on that claim". The former submission is plainly correct. The latter does not seem to me properly to reflect the practical result of the claim for the breach of the Shareholders Agreement, where numerous claims of considerable complexity had been brought, and only one, assigned by the provisional liquidator of Colorado to HY International, for the diversion of business from one customer over a confined period, succeeded; and where, as I noted above, Phoenix was wholly unsuccessful in its claims. 17The Plaintiffs also submit that it is fair and reasonable that they should be awarded a proportion of their costs of the proceedings, and submit that the evidence relating to the breach of duty and breach of contract claim was more extensive than the evidence relating to the misleading or deceptive conduct claim on which they had failed. They submit that a significant portion of their affidavit evidence was directed to the breach of duty and contract claim, through diversion of business, although that does not necessarily assist their position, where significant parts of that claim failed. In oral submissions, Mr Harper who appeared for the Plaintiffs, submitted that they had achieved partial success and should have a costs order in their favour reflecting that success; that any percentage would be arbitrary, but that an order of 60% of those costs would be appropriate. For reasons that will emerge below, it seems to me that the Plaintiffs are correct that they should have costs in their favour reflecting their partial success in their claims; however, their submission as to the quantum of that order had no regard to the possibility that the Defendants should have orders for costs in their favour reflecting their substantial success in defending large parts of the proceedings; and to the possibility that the amount of the order for costs in favour of the Defendants, in respect of their success in the proceedings, will be significantly larger than the order for costs in favour of the Plaintiffs, because the Defendants' success was in relatively large scope and the Plaintiffs' success was in relatively narrow scope. 18The Defendants point out that the misleading or deceptive conduct claim failed and that the Plaintiffs established one pleaded breach of contract claim but failed to establish damages in that respect. The Defendants point out, as I note above, that the claim for diversion of business on which HY International succeeded was assigned to it by Colorado's provisional liquidator in April 2013, several months before the commencement of the hearing, and that retrospective approval for that assignment was given only in November 2013, two weeks before the commencement of the hearing, under s 477(2B) of the Corporations Act 2001 (Cth). While those propositions are correct, they do not affect the fact that HY International was in fact successful in that regard. 19The Defendants submit that the Plaintiffs' misleading or deceptive conduct claim was entirely unsuccessful and that there should be an order that the Plaintiffs should pay their costs of that claim. That claim was, on any view, a very substantial aspect of the case; it required significant time to be spent by both parties in respect of cross-examination; and there seems to be no doubt that the case would have been significantly shorter had that claim not been brought. In these circumstances, it seems to me that it is both a substantial and divisible part of the Plaintiffs' claims, which should be the subject of a separate costs order. It seems to me that the Defendants have been put to substantial costs by that claim, and the interests of justice would not be served, nor the compensatory function of a costs order satisfied, if they were left to bear those costs because the Plaintiffs had had modest success in respect of another aspect of the proceedings. Accordingly, there should be either a separate costs order in the Defendants' favour in this regard, or that should be taken up in an overall assessment of costs as noted below. 20The Defendants also submit that, as I noted in my principal judgment, the claims for breach of the Share Sale Deed and Shareholders Agreement were very complex, with numerous breaches pleaded, supported by separate particulars which raised other matters. I observed in paragraph 335 of my principal judgment that the majority of the particularised acts were not shown to involve a breach of the relevant provisions of the Share Sale Deed and Shareholders Agreement. I held that Clare's conduct in respect of the diversion of business associated with one customer to Sorrento Kitchens was a breach of the Shareholders Agreement and the Share Sale Deed, but that the Plaintiffs could not recover loss in that regard, because it was reflective of the loss that Colorado was entitled to recover (and did recover) in respect of that conduct. The diversion of that customer's business also gave rise to breaches of other specified terms of the relevant agreements, although no loss was established in respect of those matters for the same reason. It seems to me that this claim was a very complex and substantial claim, which required the Defendants to devote substantial resources to preparing evidence to address it, to cross-examination, and to submissions. It seems to me that the Defendants' costs in preparing for the proceedings and the costs incurred in the proceedings themselves would have been significantly less had these issues not been included in them. It also seems to me that the interests of justice and the compensatory purposes of a costs order would not be served unless the Plaintiffs are required to pay the Defendants' costs of these claims, or they are otherwise reflected in an overall costs order. 21The Defendants submit that the Plaintiffs were also unsuccessful in respect of many of their allegations of breach of equitable and statutory duty and that they were also unsuccessful in establishing standing to pursue a claim for statutory duty. I held in paragraph 451 of my principal judgment, that the only breaches as to which the Plaintiffs had standing, and which they had established, were breaches of the Shareholders Agreement and a breach of fiduciary duty by Clare in respect of the diversion of the single customer's business from Colorado to Sorrento Kitchens during 2010. The Defendants also submit that substantial expert reports on which the Plaintiffs relied travelled well beyond the claims on which they succeeded and that preparation for cross-examination of the Plaintiffs' expert and the preparation of evidence in response to the Plaintiffs' broader claims for damages was time-consuming. 22In oral submissions, Mr Braham, who appeared with Mr Neggo for the Defendants, drew attention to the outcomes across the various claims brought by the Plaintiffs, to which I have referred above, and submitted that: "The upshot of all of that in our submission is it would be an appropriate exercise of your Honour's discretion in relation to costs to award the defendants all of their costs on a party/party basis of the misleading and deceptive conduct claim and half of their costs of the balance of the plaintiffs' claims against them to pick up the defendants' total success on the contracts claims and significant success on the breach of duty claims." (T17) Mr Braham made a further submission based on UCPR r 34, which I do not accept for reasons noted below, and then submitted that: "Rather than send the matter off for separate assessment on various issues, your Honour could give effect to that approach by directing that the plaintiffs pay 80% of the defendants' costs of the proceedings and that would, we say, fairly reflect what I have suggested is the appropriate approach." (T18) 23The Defendants point out, and I accept, that there is greater reason for treating causes of action separately in this case where different claims were made against different defendants, formulated on a different basis, by contrast with the position where several claims were brought against one defendant and some succeeded and some failed. As the Defendants point out, the Plaintiffs' primary claims in their individual capacity were claims for misleading or deceptive conduct and claims for breach of contract in respect of the Shareholder Agreement. All of those claims were unsuccessful. One of the two Plaintiffs, HY International, was successful to some extent in a claim which had been assigned to it, by the provisional liquidator of Colorado, in a transaction for which leave was granted by the Court shortly before the hearing. 24It seems to me that, in broad terms, the Defendants should be entitled to recover their costs of defending the misleading or deceptive conduct claims against them, and that those claims, in broad terms, occupied at least half of the parties' efforts and a similar proportion of the hearing time. It also seems to me that the Defendants should have their costs of their successful defence with the contractual claims brought against them, by the Plaintiffs in their personal capacity, which also failed. Although the evidence relating to those claims overlapped with the evidence led in respect of the claims assigned by the provisional liquidator of Colorado to HY International, a significant amount of court time was nonetheless devoted to the very complex case pleaded by the Plaintiffs in respect of the contractual claims under the Shareholders Agreement and to exploring the terms of the relevant agreements and to submissions as to their impact. HY International, which was one of the two Plaintiffs, should have its costs of its successful claim on the cause of action assigned to it by the liquidator, but those costs could not extend to the period prior to that assignment being entered into, and arguably could not extend to the period before which leave for it was granted by the Court. Balancing these matters in a broad way, and accepting that any analysis must be to some extent a matter of impression rather than one of mathematical certainty, it seems to me that - subject to the particular issues that I address below - a fair and just result is, as the Defendants submit, that the Plaintiffs should pay 80% of the Defendants' costs of the proceedings, and the Cross-Defendants should pay the Cross-Claimants' costs of the proceedings. Costs of the issues as to assignment 25The Plaintiffs also submit that the Defendants should pay their (or, more precisely HY International's) costs of and incidental to the issue whether the Court should approve the assignment of certain equitable causes of action to HY International, on which HY International succeeded, but not in respect of the assignment of statutory causes of action. I do not accept that a separate order should be made as to the costs of argument over the assignment. The ultimate effect of that assignment was to enable HY International to bring equitable (but not statutory) claims, the majority of which were unsuccessful. It does not seem to me that HY International's success in respect of whether the assignment should be approved should be determined without regard to its success in the ultimate claims to which the assignment was a precursor. Its success in obtaining approval for the assignment, so far as it is reflected in its limited success on one of the assigned equitable causes of action, is sufficiently reflected in the overall order as to the costs which I have addressed above. Potential application of UCPR r 42.20 26The Defendants in turn point to UCPR r 42.20 which provides that: "If the Court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the Court otherwise orders, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed." 27Mr Braham accepted that there was no authority to which the Defendants could refer to where r 42.20 had been relied upon to support an order for costs where part of a case was dismissed after a hearing on the merits. The absence of such authority seems to me to be significant, where there are numerous cases which have considered the position where there are mixed results at a hearing. In their submissions in reply, the Plaintiffs point out, and I accept, that the decisions concerning UCPR r 42.20 generally deal with dismissal of proceedings without any hearing on the merits. In any event, that rule creates no more than a starting point for the assessment of liability for costs. It does not seem to me that that rule requires that I adopt a different process than would be adopted under s 98 of the Civil Procedure Act and UCPR r 42.1 in any event. Potential application of UCPR r 42.34 28The Plaintiffs acknowledge that they have recovered less than $500,000 on their breach of duty and contract claim and recognise that UCPR r 42.34 has potential application. That rule provides that: "(1) This rule applies if: (a) In proceedings in the Supreme Court, other than defamation proceedings, a plaintiff has obtained a judgment against the defendant or, if more than one defendant, against all the defendants, in an amount of less than $500,000, and (b) The plaintiff would, apart from this rule, be entitled to an order for costs against the defendant or defendants. (2) An order for costs may be made, but will not ordinarily be made, unless the Supreme Court is satisfied that the commencement and continuance of the proceedings in the Supreme Court, rather than the District Court, was warranted." 29The Plaintiffs submit that the commencement and continuation of these proceedings in the Supreme Court, rather than the District Court, was warranted. The proceedings were initially commenced by Clare as an application to wind up Colorado. The Plaintiffs were joined, initially as Defendants, by order of White J made on 8 August 2011. Colorado in turn brought claims of breach of equitable duty against Clare, by Points of Claim, which were ultimately continued in a Further Amended Statement of Claim filed in the proceedings. The fact that these matters were raised in existing proceedings in this Court, to which they had a strong factual and legal connection, seems to me to support the commencement of the claim in this Court. 30The Plaintiffs also point out, inter alia, that their breach of duty claim was connected to the misleading or deceptive conduct claim and that significant issues arose in the proceedings, including the question of assignment, that were appropriate for determination by this Court. The Defendants submit that the proceedings could have been brought in the District Court, which has jurisdiction in claims for equitable damages up to $750,000, and that the allegations on which the Plaintiffs have succeeded would have fallen within that court's jurisdiction. While that proposition is plainly correct with the benefit of hindsight, it does not seem to me that that matter should have been apparent to the Plaintiffs when the proceedings were commenced. The Defendants respond to the Plaintiffs' reliance on the connection between the misleading or deceptive conduct claim and other issues in the proceedings by submitting, inter alia, that the misleading or deceptive conduct claim had no basis and should not have been commenced in any court. It seems to me that that approach involves an illegitimate application of hindsight. The misleading or deceptive conduct claim involved, inter alia, the assessment of issues of credit and it was not self-evident that it could not succeed. 31The Plaintiffs, in reply, referred to several other matters, by way of response to the suggestion that the proceedings should not have been commenced in this Court. It does not seem to me to be necessary to address those matters, given the conclusion that I have reached on other grounds. It seems to me that the complexity and scale of the proceedings is such that they were properly commenced in this Court, notwithstanding that the Plaintiffs' ultimate result is no doubt less favourable than they would have wished. It seems to me that I may also have regard, in reaching a finding that the proceedings were properly commenced in this Court, to the fact that the proceedings brought by the Plaintiffs were initiated by way of Cross-Claim in proceedings brought by Clare in this Court, as I have noted above. Costs of the cross-claim 32The Cross-Claimants and Cross-Defendants accept that the Cross-Defendants should pay the costs of the Cross-Claim. Costs of reserved issues 33The Plaintiffs point to twelve occasions on which costs were reserved. The Defendants submit that, to the extent that costs were reserved at an interlocutory stage, the Defendants should have their costs of and in connection with the giving of undertakings and the applications to vary those undertakings, including an examination of Clare in February 2013; the Defendants should have their costs of arguing the Plaintiffs' application to strike out specified paragraphs of their Defence; and all other reserved costs should be costs in the cause, and subject to the apportionment for which they contend. 34On the other hand, the Defendants submit that the reserved costs orders in the proceedings relate to, first, orders relating to discovery, subpoenas and notices to produce. The Defendants point out that numerous subpoenas were issued by the Plaintiffs; there were various disputes as to those subpoenas, as to which the parties had a mixed result, and these included orders made on 13 September and 25 October 2012, 13 February 2013, 25 March, 3 October, 14 October and 14 November 2013. The Defendants submit that justice would be done if the reserved costs referrable to those arguments were treated as costs in the cause and subsumed in the broader costs orders made in the proceedings. 35The Plaintiffs in turn submit that the Defendants should pay their costs of an Amended Interlocutory Process relating to further and better discovery on 13 September 2012; that the parties should pay their own costs of and incidental to the application to set aside or limit subpoenas and as to categories of discovery on 25 October 2012; that each party should pay their own costs of the application to set aside a notice to produce on 13 February 2013, as to which the parties had a mixed result; that the Defendants should pay the Plaintiffs' costs of a motion seeking to set aside a notice to produce on 25 March 2013; that each party should pay their own costs of orders made in chambers on 14 October 2013 in respect of discovery and interrogatories; and that the Plaintiffs should pay the Defendants' costs of an Interlocutory Process to set aside subpoenas heard on 14 November 2013, as to which the Defendants were successful. 36On balance, it seems to me that the applications as to discovery, subpoenas and notices to produce should be treated as a group, and that the parties had a mixed result, which reflected both the issue of subpoenas and notices to produce by the Plaintiffs that were from time to time excessively wide and applications brought by the Defendants to set aside other subpoenas that were from time to time unsuccessful. It seems to me that the proper order is not, in a case of this complexity and scale, to make individual orders dealing with each of these applications, which would in turn involve significant costs in an assessment, but instead to make an order reflecting the overall result of these attendances. It seems to me that the proper order, having regard to the mixed result of the applications, is that there should be no order as to the costs of these matters. 37The Defendants submit that the second group of reserved costs orders in the proceedings relates to procedural orders in respect of matters such as extensions of time for filing of evidence. The Defendants identify several occasions on which procedural matters were dealt with, including 7 November 2012, which related to an extension of the time for the filing and service of a further affidavit by Clare; 3 October 2013 which again related to an extension of time for the service of evidence; and 9 December 2013, which related to an application by the Defendants for further security for costs which was dealt with in Chambers. They note that the 7 November 2012 and 9 December 2013 orders were by consent and that the 3 October 2013 hearing involved argument as to interrogatories and discovery in any event. The Defendants contend that the reserved costs should be costs in the cause, and dealt with within broader costs order. I accept that submission, although little ultimately turns on whether these costs are included given the basis on which the Defendants seek a lump sum costs order, to which I will refer below. 38The Defendants submit that the third category of reserved costs orders in the proceedings relate to orders dealing with the variation of undertakings given by Clare, which created restraints on dealings with her assets. The Defendants refer to several attendances relating to the variations of undertakings given by Clare. On the first occasion, on 5 December 2012, an application was made before the Duty Judge to vary those undertakings, so as to permit the sale of Clare's house, and orders were made by consent. Two subsequent applications for leave to vary those undertakings were made by Clare and resisted by the Plaintiffs, although the Court granted those applications. It seems to me that the Plaintiffs should be required to pay the Defendants' costs of the applications to vary these undertakings, both because they were unsuccessful in their opposition to variation of the undertakings, and because the basis of the undertakings has also been substantially undermined by the result of the proceedings. 39The Defendants identify the final category of reserved costs as relating to an application brought by the Plaintiffs to strike out paragraphs 176 - 207 of the Defence, relating to a proportionate liability defence pleaded by the Defendants. That application was unsuccessful. The Plaintiffs contend that the Defendants should pay the costs of that application because the Defendants did not press those paragraphs of the Defence. However, that statement requires qualification, because those paragraphs of the Defence were not pressed when it became clear that the Plaintiffs did not seek to contend that their loss or damage included any deterioration in the value of Colorado's shares in the period after June 2009 and that the complexities of the proportionate liability defence raised by the Defendants in respect of later events therefore did not arise. Conversely, the Defendants contend that the Plaintiffs should pay their costs of and incidental to this issue. I accept that submission, on the basis that the subsequent developments did not undermine the Defendants' success in resisting the application to strike out these paragraphs of the defence, but merely rendered it unnecessary for them to rely on them. Again, little may turn on that result given the basis on which the Defendants seek a lump sum costs order. Application for costs order on a specified gross sum basis 40The Defendants seek an order, under s 98(4) of the Civil Procedure Act, that the Plaintiffs should pay their costs in a specified gross sum rather than on the basis of an assessment and, specifically, that the Court should make a gross sum costs order in their favour in the amount of $800,000 and that the security for costs should be released to Clare forthwith. They submit that a separate gross sum costs order on the Cross-Claim should be made in the amount of $30,000. 41Section 98(4) of the Civil Procedure Act relevantly provides that the Court may make an order to the effect that a party to whom costs are to be paid is entitled to a specified gross sum instead of assessed costs. That power is most commonly exercised where, as in this case, costs have been incurred in a lengthy or complex case although it is not in its terms limited to such a case: Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006; Simone Starr-Diamond v Talus Diamond (No 4) [2013] NSWSC 811 at [8]. The power to make a gross sum costs order should only be exercised where the Court considers it can do so fairly between the parties, including achieving an appropriate sum on the materials available to it, and the courts have typically applied a discount in assessing costs on a gross sum basis: Ritchie's Uniform Civil Procedure NSW [s98.65]; Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23. Where a gross costs order is made, the Court is not required to undertake a detailed examination of the kind which would be undertaken in a cost assessment, in determining a gross sum payable, and will apply "a broad brush" approach: Hadid v Lenfest Communications Inc [2000] FCA 628 at [35]; Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 at [22]. 42In Hamod v State of New South Wales [2011] NSWCA 375 (at [816]-[817]), the Court of Appeal summarised factors relevant to the making of such an order as follows: "The terms of s 98(4), together with the more general considerations reflected in the Civil Procedure Act, ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: Ritchie's Uniform Civil Procedure NSW at [s 98.45]. The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120; Charlick Trading Pty Ltd v Australian National Railways Commission; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]-[195]; Hadid v Lenfest Communications Inc [2000] FCA 628." Importantly, the Court of Appeal there noted that the capacity of the unsuccessful party to satisfy any costs liability was a matter that was relevant to the question whether a lump sum costs order should be made. The same point has been made in other cases: Harrison v Schipp above at [21]; Hadid v Lenfest Communications Inc above. 43On the other hand, the Plaintiffs refer to the observations of Giles JA in Harrison v Schipp above [21]-[22] that the power to make a gross sum costs order should "only be exercised when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available". The Plaintiffs submit that the Court could only reach sufficient confidence by receiving extensive evidence of the costs incurred, which would not be appropriate for the exercise of discretion under s 98 of the Civil Procedure Act. I do not accept that submission. That section confers a specific power to make a gross sum costs order on the Court and it follows that the Court should receive such evidence as is properly necessary to exercise that power in an appropriate case. 44The Plaintiffs also referred to my decision in Barescape Pty Ltd (as trustee for the V's Family Trust) v Bacchus Holdings Pty Ltd (as trustee for the Bacchus Holdings Trust) (No 12) [2012] NSWSC 1591 at [36] where I held that it would not be appropriately retrospectively to cap the costs recoverable by a plaintiff that had achieved substantial success in the proceedings, albeit that the damages which it had recovered were limited in quantum. It does not seem to me that that decision is on point, because the Defendants here are seeking a specified gross sum costs order in respect of the costs to which they claim to be entitled, not an order capping the costs recoverable by the Plaintiffs. 45The Defendants rely on the affidavit of their solicitor, Mr Jeffrey Siddle, sworn 20 August 2014 in support of the application for costs on a lump sum basis. Mr Siddle has been a solicitor for over 9 years and his evidence is that he has had the carriage of a number of complex litigation matters in this court and other courts. He refers to evidence that Clare and CH Design had incurred costs of approximately $614,682 (excluding GST) as at 27 September 2013, and incurred further legal costs and disbursements of approximately $781,496 (excluding GST) between 28 September 2013 and 20 March 2014, during the period of the substantive hearing of the proceedings. He notes that Clare and CH Design have subsequently been invoiced for further disbursements of approximately $9,034 such as transcript and translator's fees. His evidence is that Clare and CH Design have no further funds remaining in trust, following the sale of Clare's home, and that Clare's solicitors and counsel are continuing to work for them in the proceedings on the basis that their fees will be paid if funds are recovered by the Defendants in the proceedings. Mr Siddle estimates the further costs incurred by Clare and CH Design through to the conclusion of the hearing in respect of costs on 5 September 2014 to be approximately $65,000, including costs of senior and junior counsel and solicitors' fees. 46The total legal costs and disbursements incurred by Clare and CH Design in the proceedings up to and including the hearing on 5 September 2014 are quantified by Mr Siddle as exceeding $1,470,213 (excluding GST) reflecting those amounts. I pause to note that, although the amount of those costs and disbursements is large in absolute terms, it is not surprising given the scale and complexity of the proceedings. Mr Siddle also notes that those amounts are calculated after substantial discounts were extended to Clare and CH Design. 47Mr Siddle's evidence is that, in his experience, between 60% and 75% of solicitor/client costs and up to 100% of disbursements (including counsel fees) would likely be recoverable on a party/party assessment of costs. I note that those figures are consistent with figures which have frequently been accepted by this Court in respect of applications for lump sum costs orders: see for example, Dubow v Fitness First Australia Pty Ltd (No 2) [2012] NSWSC 961 at [14]-[20]; Re: Palladium Consulting Pty Ltd [2013] NSWSC 92 at [14]; Liberty Industrial Pty Ltd v Donald Mcarthy Trading Australia Pty Ltd [2013] NSWSC 279 at [17]. Mr Siddle also expresses the view, which seems to me to be correct, that the gap between party/party and solicitor/client costs on an assessment would be narrowed in this case by the discounts previously extended to Clare and CH Design. Mr Siddle has therefore adopted the upper end of his range, being a percentage of 75% of solicitor/client costs and 100% of disbursements (including counsels' fees) in estimating the extent of costs that are likely to be recoverable on an assessment. Mr Siddle sets out, in some detail, that the basis of his estimate of costs recoverable in the period to and after 27 September 2013 and estimates, on that basis, that at least $1,216,316 (exclusive of GST) would be recoverable by the Defendants on a party/party assessment of costs if the Plaintiffs were ordered to pay the Defendants' costs of the proceedings. He notes that that amount would be reduced by offsetting costs orders made in the proceedings in favour of the Plaintiffs, and identifies several such orders. After allowing for that calculation, he calculates that the net amount likely to be recoverable by Clare and CH Design would be $1,172,403 (exclusive of GST). 48By a further affidavit dated 4 September 2014, Mr Siddle led evidence of the costs agreement between his firm and Clare and CH Design, and of invoices issued by his firm in respect of costs in the proceedings. As I noted above, I adjourned the application to permit the Plaintiffs to lead any evidence, including evidence of a costs assessor, in response to Mr Siddle's evidence in this respect. The Plaintiffs ultimately elected to lead no such evidence and it seems to me that, in that situation, I can and should infer that no evidence which would have been led would have assisted them. In that situation, it seems to me that I can more readily accept Mr Siddle's estimate of the costs recoverable, on the basis that no evidence was led by the Plaintiffs to contest it. 49Mr Siddle also points out that the security provided for the Defendants' costs is in the vicinity of $600,000 and the Plaintiffs are proprietary companies that are unlikely to pay more than that amount, which he considers is significantly less than the amount likely to be determined on an assessment. It seems to me that Mr Siddle's assessment in that regard is likely to be well-founded, where there is no suggestion that the Plaintiffs have substantial assets in their own right and their conduct of the proceedings has been funded by Mr Huang, who is not resident in the jurisdiction. The Plaintiffs have not led evidence of their financial position, and I should infer that that evidence would not assist them in establishing that they have the capacity to meet a costs order beyond the amount of security for costs held. If it were necessary to go further, the proceedings have previously been conducted on the basis that the Plaintiffs do not themselves have sufficient funds to meet orders for costs against them, and security for costs has been ordered on that basis. In oral submissions, Mr Braham drew attention to the observation of Senior Counsel for the Plaintiffs, in the course of an application for leave to bring a derivative action (which, I note, was not granted when no acceptable indemnity was provided in respect of Colorado's liability for costs of that action) (at T669-670) as follows: "Your Honour if it's said [HY International] has no assets at present from which to satisfy a costs order that's not in dispute, but the general proposition that it doesn't have any means to satisfy a costs order is not the same thing. There may be sources of funding open to it." (emphasis added) Mr Braham submits, and I accept, that the consequence of that submission is that those standing behind the Plaintiffs will determine whether or not they will cause them to meet a costs order, beyond the amount presently ordered by way of security for costs. Mr Braham points out that there is no doubt that Mr Huang, Helen's husband, who funded the costs of the conduct of the proceedings, has the capacity to fund the Plaintiffs to meet such costs, but he is not resident in Australia and whether he will choose to fund the Plaintiffs to pay such costs is unknown. 50The Plaintiffs respond to the submission that they were unlikely to be able or willing to pay any more than the amount of the security provided, in submissions in reply, by submitting that: "There is no evidence which would justify such an assertion. Indeed, to the contrary, the Plaintiffs willingly provided security for costs at several points during the proceedings, from which a willingness to pay costs can be inferred." I am unable to accept that submission. The proposition that the Plaintiffs "willingly" provided security for costs somewhat overstates the position, where from time to time they responded to applications for further security for costs by accepting that security should be provided for a further amount. It seems to me that an inference arises from common experience that, where a company has limited assets and faces a substantial costs order, it is the exception rather than the rule that its shareholders voluntarily choose to contribute substantial amounts to assist it to meet that order. In the present case, the principals of the Plaintiffs could readily have led evidence to indicate that they did intend to behave in that creditable, but somewhat exceptional, manner but have not done so. 51As Mr Braham pointed out in oral submissions, a gross sum costs order in the amount sought by the Defendants would be significantly less than the amount of their actual costs; it would also be significantly less than the amount which they might be expected to recover on an assessment, in the Court's usual experience of such assessments; and it seems to me that there is no real risk that it would overcompensate them for the costs they have incurred in the defence of the proceedings. Mr Siddle's evidence is that, and I accept that, it is likely that a costs assessment would itself involve substantial costs, given the length and history of the proceedings, the complexity and number of issues raised in them and the number of costs orders that have been made in the proceedings. Mr Siddle's evidence is that the filing fee for an assessment would itself exceed $14,000 if the whole of the costs claimed by the Defendants were disputed, and that the costs of preparation of a bill of costs and the costs of responding to objections in the assessment process would be substantial. Mr Siddle also points out that, if the Plaintiffs ultimately do not meet an order for costs beyond the amount of the security held, the costs incurred by the Defendants in the assessment process would ultimately reduce the amount recovered by them. As I noted above, I can more readily accept Mr Siddle's assessment that there is a real risk that the natural persons standing behind the Plaintiffs will not assist them to meet an order for costs against them, beyond the amount already provided for security for costs, where they have led no evidence to the contrary. 52In those circumstances, the case to avoid the wasted costs of assessment, particularly where there is a real question as to the Plaintiffs' ability or willingness to meet an order for costs beyond the amount held by security for costs, is overwhelming. As Mr Braham pointed out in oral submissions, if events developed in a manner that the Plaintiffs ultimately were not funded by their shareholders to pay costs, in excess of the security for costs presently held, then the costs incurred by the Defendants in filing fees and in the costs of an assessor would not only be wasted, but would reduce the funds available to compensate them for the costs which they have incurred in the defence of these proceedings. In oral submissions, Mr Braham submitted that that would amount to the Defendants spending the money they might hope to recover, in compensation for costs, on the process of assessment itself and characterised that result as "very unfortunate and unfair", a characterisation which I would accept. 53I am therefore satisfied that a lump sum costs order should be made in the form for which the Defendants contend because, in summary, first, an assessment is likely to be complex and additional costs would inevitably incurred by both parties' solicitors and additional disbursements would be incurred in an assessment, including the likely costs of cost consultants to the parties and the assessor's fee for conducting the assessment; second, there is real doubt that the Plaintiffs will be funded to meet an order for costs against them beyond the amount of security already provided; third, as I noted above, the Defendants have led detailed evidence as to the costs they have in fact incurred; and, fourth, the amount claimed by the Defendants is not excessive for a case of this length and complexity. I am satisfied that a lump sum costs order should be made in respect of the costs claimed in respect of the Cross-Claim for the same reasons, albeit that claim was in narrow scope and the costs attributable to it are a relatively small part of the overall costs of the proceedings. 54The Plaintiffs submit that, if the Court were otherwise inclined to make a gross lump sum costs order, GST should be excluded, since there is no suggestion that the Defendants are not registered for GST and would not be entitled to an input credit for GST paid: Re Palladium Consulting Pty Ltd above at [13]. It does not seem to me that that question arises, in a practical sense, where the Plaintiff seek substantially less, by way of a gross sum costs order, than that which they are likely to recover on an assessment, whether inclusive or exclusive of GST. 55In oral submissions, Mr Harper also indicated that, if the Court were to be minded to make costs orders adverse to the Plaintiffs and to order immediate access to security, the Plaintiffs wish to make submissions based on the fact that a notice of intention to appeal had been lodged, seeking a stay of such orders. It appears that any notice of appeal was due to be filed on 14 October 2014, prior to the delivery of this judgment. I propose to make such orders, for the reasons set above, and I will hear the Plaintiffs in respect of any application for a stay of them. In oral submissions before me, Mr Harper also identified a matter which was the subject of discussions between the parties, that an amount of $60,000 was held in the trust account of the Defendants' solicitors which, he contended, was held for the benefit of Colorado and could be used to satisfy the judgment against it on the Cross-Claim. I will also hear the parties if there remains any dispute as to that matter. 56The parties should bring in short minutes of order to give effect to this judgment within 14 days, and I will set a time to hear them in respect of the matters noted above to the extent that it is necessary to do so.

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