These reasons should be read with my earlier reasons[1] published on 22 May 2024. I have used defined terms here from those reasons.
At the conclusion of those reasons, I directed the parties to bring in a minute with a revised expert schedule.
It appeared for some time that the parties would be unable to reach an agreement as to a revised minute and that a further hearing would be necessary. That further hearing was set down for 22 August 2024.
On the eve of that hearing, the Court was provided with an agreed revised schedule. I made orders on 22 August 2024 in accordance with that agreed schedule.
Relevantly, that left only the question of costs for determination; the parties indicated on 21 August 2024 that they were content for me to resolve that on the papers.
The parties had filed (relatively) short submissions on the question of costs: the plaintiff on 28 June 2024; and the defendants on 24 July 2024.
Broadly:
the plaintiff contended that the defendants ought pay 80% of its costs; and
the defendants contended that the appropriate order was for costs to be in the cause.
The defendants contended that the appropriate order was that costs should be in the cause because:
the hearings arose out of a court ordered process which was not precipitated by an interlocutory application by either party;
so, the hearings were a necessary step in the litigation for both parties;
neither side was wholly successful or unsuccessful on the disputed areas in the Schedule;
at such an interlocutory stage it was particularly difficult to determine the relative significance of the issues on which the respective parties were wholly or substantially successful; and
there was likely to be a very significant overlap between the work done in connection with the two hearings and the ultimate trial of the action.
With respect, there is force in each of those propositions.
However, notwithstanding that, the hearings which took place on 20 February and 15 May were, as a matter of substance, much more in the nature of a discrete contested application than any case management hearing.
There was extensive oral and written argument directed to each contested aspect of the Schedule. And, while it may be that some contested matters will assume a lesser significance when the proceeding is determined, these hearings will have a significant impact on the expert evidence at trial which I apprehend will be central to the cases presented.
I consider it appropriate in those circumstances to make a costs order (other than in the cause).
The parties were agreed that if the Court were minded to award costs the task was to form an overall impression or make a broad evaluation; it was not to attempt an arithmetical undertaking or a process of tabulating wins and losses.
Both parties in their submissions attempted such overall assessments. I have had regard to those submissions in testing the overall impression I was left with from the hearings and the preparation of my earlier reasons.
I consider that the appropriate order as to costs is that: the third and fourth defendants pay 60% of the plaintiff's costs of and incidental to the hearings on 20 February and 15 May 2024 in any event; with such costs to be taxed if not agreed.
Broadly, the percentage of the plaintiff's costs I have awarded reflects that:
the preparation of an expert schedule is, especially in a large piece of litigation, important for both case management purposes and to assist the efficient hearing of a trial;[2] and
on the contested questions, the plaintiff was not wholly successful.
From that first matter, it will be seen that I have accepted the force of the defendants' submissions recorded in [7.1], [7.2], and [7.5] above, and have reduced the amount which might otherwise have been awarded to the plaintiff.
[2]
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
[3]
[1] Forge Group Ltd (in liq) (Receivers and Managers appointed) v Clough Ltd [No 2] [2024] WASC 192.