DIF III - Global Co-Investment Fund LP v Babcock & Brown International Pty Limited

Introduction

1. On 13 May 2019, I delivered judgment in this matter (see DIF III - Global Co-Investment Fund LP v Babcock & Brown International Pty Limited [2019] NSWSC 527) in which I dismissed the plaintiffs' claims and each of the cross-claims. This judgment concerns the question of costs. It assumes knowledge of my earlier judgment and uses the abbreviations contained in it.
2. The plaintiffs accept that as the unsuccessful parties they must pay the defendants' costs - that is, the costs of Messrs Green, Topfer, Nielson and Nicholson and the PI Insurers - on the ordinary basis. With one qualification, the cross-claimants also accept that they should pay the cross-defendants' costs respectively of each of their cross-claims. However, each of the cross-claimants claim that they are entitled to recover their own costs of their cross-claims from the plaintiffs and to be indemnified by the plaintiffs in respect of any costs ordered to be paid by them in respect of those cross-claims. Moreover (and this is the qualification), Messrs Green, Topfer, Neilson and Nicholson (together the Indemnified Defendants) submit that the plaintiffs should pay the PI Insurers' costs of their cross-claims against the PI Insurers directly on the basis that the plaintiffs also brought a direct claim against the PI Insurers (relying on the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW)) and are liable for the costs of that claim. The plaintiffs deny that they should pay any costs in connection with the cross-claims.
3. Four other points should be made by way of introduction.
4. First, by a notice of motion filed on 13 September 2019, the PI Insurers sought an order that LCM Litigation Fund Pty Ltd (the Funder), which provided litigation funding to the plaintiffs, should be jointly and severally liable for the costs of defending the claim against the PI Insurers. That notice of motion was resolved during the course of the costs hearing.
5. Second, the D&O Insurers sought an order that BBIPL be jointly and severally liable for any costs orders made in their favour against the Indemnified Defendants. The D&O Insurers sensibly (with encouragement from the Court) abandoned that claim during the course of the hearing.
6. Third, the D&O Insurers claimed interest on their costs from the time their costs were paid. That order was originally resisted by BBIPL and the Indemnified Defendants. However, during the course of the hearing BBIPL conceded that the D&O Insurers were entitled to recover interest on their costs from the time those costs were paid. No other party demurred from that concession.
7. Fourth, the D&O Insurers had claimed part of their costs on an indemnity basis relying on offers of compromise. They also claimed two sets of costs. That arose from the fact that there are relevantly six groups of D&O Insurers consisting of the first to sixth excess layers (the primary policy had already been exhausted). Participants in the second to sixth excess layers other than Allianz (the third to ninth cross-defendants) were represented by Colin Biggers & Paisley. The participants in the first excess layer, Allianz Insurance (which also had subscribed to the fifth excess layer), and XL Insurance Company, were represented by Moray & Agnew. Both sets of insurers briefed the same counsel in the proceedings. The D&O Insurers claimed that they were entitled to recover both sets of solicitors' costs. After the hearing on costs had concluded, the D&O Insurers settled their claim for costs on the basis that costs would be payable on the ordinary basis and that the third to ninth cross-defendants would not be entitled to recover costs that duplicated those incurred by the first and second cross-defendants except to the extent that the costs were incurred in relation to settlement.
8. The result is that the only outstanding question of substance is the extent to which the plaintiffs should be ordered to pay the costs of the cross-claims.

The plaintiffs' liability for the costs of the cross-claims

1. Three cross-claims or groups of cross-claim remain relevant to the question of costs: 1. Messrs Green and Topfer's cross-claims for contribution against BBIPL, BBLP and Messrs Neilson and Nicholson (the Fifth and Sixth Cross-Claims respectively); 2. Mr Green's cross-claim (the Second Cross-Claim) and Messrs Topfer, Neilson and Nicholson's cross-claim (the Third Cross-Claim) against the D&O Insurers and the PI Insurers; and 3. BBIPL's cross-claim against the D&O Insurers seeking its costs of indemnifying the Indemnified Defendants in respect of the plaintiffs' claim against them (the First Cross-Claim).
2. The question whether a plaintiff will be ordered to pay the defendant's costs of an unsuccessful cross-claim, and to indemnify the defendant against costs it is ordered to pay the successful cross-defendant, turns ultimately on whether those costs ought fairly to be borne by the plaintiff. That, in turn, depends on a number of factors including whether the proceedings were the catalyst for the cross-claim, whether it was reasonable for the defendants to have joined the cross-defendants, and whether the cross-claim raised issues private to the parties to it: see GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688, (2003) 201 ALR 555 at [72]-[75] per Finn J, cited with approval by Hodgson JA in Furber v Stacey [2005] NSWCA 242 at [32].
3. In applying these principles, it is necessary to consider each of the cross-claims separately. It is convenient to begin with Messrs Green and Topfer's cross-claims for contribution.

The cross-claims for contribution

1. The plaintiffs' claim was undoubtedly the catalyst for those cross-claims. It could not be said that the issues raised by the cross-claims were private to the parties to them. The claims were claims for contribution which necessarily involved the same factual matrix concerning the defendants' conduct in relation to the Coinmach transaction and their respective responsibilities arising from that conduct.
2. The plaintiffs submitted that it was unreasonable for Messrs Green and Topfer to bring the cross-claims because the cross-claims had no real prospects of success. On the findings I made, they were statute barred and were misconceived because contribution was not available for a dishonest breach of fiduciary duty.
3. I do not accept the plaintiffs' submissions for two reasons.
4. First, the factual issues raised by the cross-claims were intimately bound up with the factual issues raised by the plaintiffs' case and it was natural and appropriate that all legal issues, including any issues of contribution, be resolved as part of the one hearing.
5. Second, although I expressed views on the limitation point and the clean hands defence in relation to a claim for contribution arising from a dishonest breach of fiduciary duty, it was not necessary for me to decide those issues, since the underlying claims failed. The claims for breach of fiduciary duty were put in various ways and the application of the relevant legal principles varied depending on the precise breach that was alleged. The claims were complex; and that complexity largely arose from the way in which the plaintiffs chose to formulate their case. Taking those matters into account, the plaintiffs should pay the cross-claimants' costs of the cross-claims and indemnify the cross-claimants against any costs they are ordered to pay to the cross-defendants.

The cross-claims against the PI Insurers

1. There can be no doubt that the plaintiffs' claim was the catalyst for the Indemnified Defendants' cross-claims against the PI Insurers. The cross-claims would not have been brought but for the plaintiffs' claim.
2. The position in relation to the cross-claims against the PI Insurers is complicated by the fact that the plaintiffs also brought a direct claim against the PI Insurers claiming an amount for which it was said the Manager was liable to the plaintiffs and entitled to be indemnified by the PI Insurers. The PI Insurers made some concessions concerning the Manager's liability. However, they raised the same defences to the plaintiffs' claim as they did to the defendants' claims.
3. The plaintiffs' principal submission in relation to costs was that it was unreasonable for the defendants to cross-claim against the PI Insurers because those cross-claims had no reasonable prospects of success. In order to understand that contention, it is necessary to say something about the claim against the PI Insurers. As is common, the PI Policy covered claims first made against the insureds during the policy period. It also contained an extension in respect of circumstances that the "Assured's Management" became aware of and were notified during the policy period that could reasonably be anticipated to give rise to the claim that was made. The claims in this case relied on the extension. It was accepted that any late notice of circumstances could be cured under s 54 of the Insurance Contracts Act 1984 (Cth). However, the PI Insurers contended, and I accepted, that there was no evidence that the Assured's Management knew of circumstances that could reasonably be anticipated to give rise to the claim that was made. The PI Insurers raised a number of other defences. They largely failed.
4. Of course, the same defence was raised to the plaintiffs' claim. But the plaintiffs say that they were in a different position from the defendants. The unavailability of the extension depended on what the defendants (more accurately, the Assured's Management) knew or did not know about the potential for claims. That was not within the plaintiffs' knowledge. Consequently, it was submitted that it was reasonable for the plaintiffs to pursue the claim against the PI Insurers even if it was not reasonable for the defendants to do so.
5. I do not accept the plaintiffs' submission. The question of what the Assured's Management knew turned on what was disclosed by contemporaneous documents. The issue was whether it could be said that the claim that was made could reasonably be anticipated from the facts disclosed in those documents. Those documents were equally available to the plaintiffs; and the plaintiffs were equally capable as the defendants of making an assessment of that issue. The claimants failed on that issue, but I do not think that it was so clear cut that it could be said that it was unreasonable to pursue the claims against the PI Insurers.
6. Moreover, although the claims against the PI Insurers were first made by the defendants, the plaintiffs chose to make their own claim and to pursue it. It was reasonable in that context for the defendants to continue to pursue their own claims which raised substantially the same issues. Consequently, it could not be said that the defendants acted unreasonably in pursuing their cross-claims against the PI Insurers. For the same reason, it could not be said that the issues raised by the cross-claims were private to the parties to them. The same issues were raised by the plaintiffs' claim. It was appropriate that those issues all be dealt with as part of one proceeding.
7. It follows that the plaintiffs should pay the defendants' costs of their cross-claims against the PI Insurers and should indemnify the defendants against the costs they are ordered to pay the PI Insurers.
8. That leaves the question whether the plaintiffs should be ordered to pay the PI Insurers' costs directly. That order is sought by the PI Insurers in the alternative. It was sought at a time when the PI Insurers also sought an order that the Funder pay their costs. No reason was advanced for why the order should be made in preference to an order that the costs be paid by the Indemnified Defendants, leaving it to them to recover those costs from the plaintiffs. Absent some particular reason, in my view the costs should be paid by the party primarily liable for them.

The cross-claims against the D&O Insurers

1. As in the case of the claims against the PI Insurers, there can be no doubt that the plaintiffs' claim was the catalyst for the claims against the D&O Insurers. The claims would not have been brought but for the claims made by the plaintiffs.
2. The plaintiffs submit that it was not reasonable for the claims to be brought against the D&O Insurers because those claims were not reasonably arguable. That was said to be so because it was apparent that notice of the circumstances giving rise to the claim was not given in accordance with the policy and that in any event, the professional services exclusion applied. I do not accept that submission. Certainly that was the conclusion I reached. However, I do not accept that the absence of notice and the application of the exclusion was so obvious that it could be said that the claim had the character of being frivolous or vexatious. In my opinion, both points were arguable. They depended on difficult questions of characterisation and the operation of provisions of the policy which were not clear.
3. The plaintiffs resist an order for costs in relation to the cross-claims against the D&O Insurers for two other reasons. First, they contend that the issues raised by the claim against the D&O Insurers were unconnected to the plaintiffs' claim and were wholly private matters between the insurers and insureds. Second, they contend that it was not reasonable for the Indemnified Defendants to pursue separate claims against the D&O Insurers when BBIPL had agreed to indemnify the Indemnified Defendants and did so.
4. I do not accept either of these contentions.
5. The D&O Insurers denied liability on a number of grounds. One of those grounds was based on an exclusion in respect of "any Claim arising out of, based upon or attributable to … any criminal, dishonest or fraudulent acts or omissions". Two things may be said about that exclusion. First, it raised similar issues to those raised by some of the plaintiffs' claims - in particular, the allegations of breach of fiduciary duties based on knowing assistance. More significantly, it requires an examination of the conduct the subject of the plaintiffs' claim and a characterisation of that conduct. It was natural and reasonable that that examination occur only once, which could only be achieved by joining the D&O Insurers to the proceedings. It is reasonable that the plaintiffs should bear the costs of joining parties who have an interest in the characterisation of the conduct about which the plaintiffs complain if those claims fail. Moreover, the joinder of the D&O Insurers was to the plaintiffs' benefit. The plaintiffs' claim was a large one. The evidence suggests that BBIPL was, without support from its lenders, insolvent. There was no guarantee that that support would be forthcoming if the plaintiffs' case succeeded. Consequently, the plaintiffs had a practical interest in the claim against the D&O Insurers.
6. As to the second point, in my opinion there was a sufficient potential for conflict between BBIPL and the Indemnified Defendants to justify the Indemnified Defendants bringing their own claims against the D&O Insurers. That potential arose from the fact that BBIPL was not liable to indemnify the Indemnified Defendants for liability that did not arise out of conduct in good faith. Consequently, they had an interest in seeing the D&O Insurers' defence based on the exclusion in respect of dishonest and fraudulent conduct succeed. It is true that BBIPL did not deny liability under its indemnity. But that did not alter the fact that its interests were different from the Indemnified Defendants so far as the application of that exclusion was concerned; and it is difficult to see how those different interests could have been managed except through separate representation.
7. It is also true that the plaintiffs made no allegations of dishonesty against Messrs Neilson and Nicholson. However, they were not separately represented in relation to the cross-claim against the D&O Insurers; and it was not suggested that the Indemnified Defendants should only be entitled to recover one set of costs from the plaintiffs. Had it been, that would have raised the question whether it was appropriate for Messrs Green and Topfer to be separately represented in relation to their cross-claims against the D&O Insurers. That question was not addressed by the parties.
8. As a result of the settlement between the D&O Insurers and those who had made cross-claims against them, the cross-claimants are in effect only liable to pay one set of costs (except in relation to settlement) on the ordinary basis. In my opinion, that is a reasonable outcome from the plaintiffs' point of view. The cross-claimants would not have done better if they had not settled with the D&O Insurers. The plaintiffs (and other parties) were invited to make further submissions following the settlement with the D&O Insurers. They chose not to do so. In those circumstances, I can see no reason why the plaintiffs should not indemnify the cross-claimants against the costs they must pay to the D&O Insurers.
9. It follows that the plaintiffs should be ordered to pay BBIPL's and the Indemnified Defendants' costs of their cross-claims against the D&O Insurers and indemnify them against the costs they have been ordered to pay to the D&O Insurers.

Summary

1. In summary: 1. The plaintiffs should pay the defendants' costs of the principal claim on the ordinary basis; 2. The plaintiffs should pay BBIPL's costs of its claim against the D&O Insurers and should indemnify BBIPL against any costs BBIPL must pay the D&O Insurers; 3. The Plaintiffs should pay Messrs Green, Topfer, Neilson and Nicholson's costs of their claim against the D&O Insurers and should indemnify them against any costs they must pay the D&O Insurers; 4. Messrs Green, Topfer, Neilson and Nicholson should pay the PI Insurers' costs on the ordinary basis; 5. The plaintiffs should pay Messrs Green, Topfer, Neilson and Nicholson's costs of their cross-claims against the PI Insurers and should indemnify them against any costs they must pay to the PI Insurers; 6. Mr Green should pay the costs of the Fifth Cross-Claim; 7. Mr Topfer should pay the costs of the Sixth Cross-Claim; 8. The plaintiffs should pay Messrs Green and Topfer's costs of bringing the Fifth and Sixth Cross-Claims respectively and should indemnify them against any costs payable by them in respect of those cross-claims.

Costs

1. That leaves the question of costs of the costs hearing. Some of those costs have been resolved by the consent orders. The plaintiffs have been unsuccessful on the principal issue that remains. However, like the other parties, they properly made some concessions before the hearing started and some issues which affected them were resolved in their favour. Taking those matters into account, I think the most appropriate order is that to the extent that costs have not already been dealt with, each party should bear his or its own costs of the costs hearing.

Orders

1. The parties should bring in short minutes of order within 14 days to give effect to these reasons for judgment.

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