• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Category: Costs

Parties: WLLHLL Holdings Pty Ltd (Plaintiff)
Martin Drebber (First Defendant)
Peter Charles Kevin O’Connor (Second Defendant)
MDTI Holdings Pty Ltd ACN 675 340 995 (Third Defendant)
PCKOC Holdings Pty Ltd ACN 670 440 007 (Fourth Defendant)
Lanmar Pty Ltd ACN 642 503 375 (Fifth Defendant)

Representation: Counsel:
Mr D Hughes SC / Mr S Odgers (Plaintiff)
Mr J Gooley / Mr P Farrell (First to Fourth Defendants)
Solicitors:
Davidson Legal Consulting Advisory (Plaintiff)
Clyde & Co (First to Fourth Defendants)

File Number(s): 2025/184570

Judgment

Nature of the application

1. By my judgment delivered on 10 July 2026 (Re Lanmar Pty Ltd (No 2) [2026] NSWSC 800) (“Primary Judgment”), I held that the Plaintiff, WLLHLL Pty Ltd (“WLLHLL”), had established its oppression claim in respect of the affairs of Lanmar Pty Ltd (“Lanmar”). I did not make the order that was initially sought by WLLHLL requiring the Third and Fourth Defendants to buy out WLLHLL’s shares in Lanmar, where I held that the expert evidence led by both parties was not sufficient to establish the value of those shares. Instead, I made an order appointing a receiver to undertake the sale of all of the shares in Lanmar. I there adopted, with variations, the approach taken by an English Court in Otello Corp ASA v Moore Freres & Co LLC [2020] EWHC 3261 (Ch) and by the Singapore International Commercial Court in Kiri Industries Ltd v Senda International Capital Ltd [2024] SGHC(I) 14, in a decision that was not challenged on appeal in Kiri Industries Ltd v Senda International Capital Ltd [2025] SGCA(I) 1. I observed that, had I not made an order for the sale of the shares in Lanmar in that manner, I would have made an order winding up Lanmar on the just and equitable ground, which WLLHLL had sought in the alternative and the Defendants had also sought.

2. I also directed the parties to submit agreed orders as to costs or, if there was no agreement, their respective draft orders and submissions as to costs. The parties have not agreed the position as to costs, have each submitted proposed orders and submissions, and have indicated that they were content to have the question of costs determined on the papers.

Whether costs should follow WLLHLL’s success in the proceedings

3. Turning first to the applicable principles, s 98 of the Civil Procedure Act 2005 (NSW) provides that costs are in the discretion of the Court. The Court has discretion under that section to determine by whom, to whom and to what extent costs are to be paid; and costs will ordinarily 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, in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Mr Gooley, with whom Mr Farrell appears for the Defendants, rightly acknowledges that the “event” refers to the practical result of a claim or counter-claim: D**oppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15].

4. A successful party in proceedings has a “reasonable expectation” of being awarded costs against an unsuccessful party, unless there is good reason for that presumption to be displaced: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [134]. The principle that costs should follow the event is the “guiding principle” with respect to costs, and the onus is on the losing party to establish the basis for a departure from the usual costs rule in r 42.1 of the UCPR: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [24]–[25]. Nonetheless, in Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121], Hodgson JA (with whom Mason P agreed) observed that:

“In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant’s responsibility because the plaintiff was caused to incur costs by the defendant’s failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled … Departures from the general rule that costs follow the event are broadly based on a similar approach.” [citations omitted]

5. Mr Hughes, with whom Mr Odgers appears for WLLHLL, draws attention to the applicable principles in respect of an order as to costs, to which I have referred above. Mr Hughes submits, relying on my judgment in Re Gunyahweh Pty Ltd (No 2) [2023] NSWSC 1204 at [8]–[10], that WLLHLL has established its claim in oppression and obtained relief, and that the “practical result” of the claim is that WLLHLL has succeeded. Mr Hughes submits that there is no reason that costs should not follow the event and there is no reason to apportion costs in relation to particular issues, a matter to which I return below. Mr Hughes emphasises that the Defendants had denied oppression, and that the Court’s finding that oppression had been established in several respects was the result of a contested hearing as to those matters. Mr Hughes also referred to my finding in Re Yamari Ochre Pty Ltd (in liq) (No 2) [2026] NSWSC 59 (“Yamari Ochre”) that the plaintiff, which had substantially succeeded in respect of its claim, should have its costs of the proceedings on an ordinary basis although it did not succeed in respect of all issues.

6. Mr Gooley points to the scope of the relief originally sought by WLLHLL, namely a declaration that the First and Second Defendants had engaged in oppressive conduct, an order that the Third and Fourth Defendants buy out WLLHLL’s shares at fair value, and alternatively an order that Lanmar be wound up. Mr Gooley emphasises that the Defendants had also sought, by way of Cross-Claim, an order that Lanmar be wound up under s 461(1)(k) of the Corporations Act 2001 (Cth).

7. Mr Gooley also refers to the length of the hearing and to the evidence led at the hearing in respect of WLLHLL’s application that the Defendants buy out its shares at fair value; he notes an issue raised by the Court on the final day of the hearing, as to whether there would be any alternative to winding up Lanmar if oppression was established but the Third and Fourth Defendants did not have the capacity to buy shares in Lanmar at any minimum value established by the expert evidence; and refers to the fact that WLLHLL then raised alternative relief in closing submissions, including the possibility of the appointment of a receiver and manager to Lanmar’s business or an order (which I did not consider was open) that Lanmar buy out WLLHLL’s shares. Mr Gooley submits that the change in the relief then sought by WLLHLL had altered the case that the Defendants were required to meet; and he also refers to questions, which were not determined at the hearing, as to the circumstances in which the parties had not themselves proceeded to a sale of the shares in Lanmar to a third party. Mr Gooley also refers to a further change in approach by WLLHLL to focus on the appointment of a receiver for the sale of Lanmar’s shares rather than the appointment of a receiver and manager over Lanmar’s business. Mr Gooley notes that, in closing submissions, the Defendants then consented to the appointment of a receiver to sell the shares in Lanmar, if oppression was established, but maintained (and, I interpolate, were successful in maintaining) their opposition to any order that WLLHLL take any specified amount of the sale proceeds of those shares in priority to the Defendants.

8. Mr Gooley also points out that the Court did not grant the declaratory relief sought by WLLHLL and granted relief that was only sought at a very late stage in the proceedings, by way of an order appointing a receiver to sell the parties’ shares in Lanmar. Mr Gooley refers to an observation in Beoco Ltd v Al**fa Laval Co Ltd [1995] QB 137 at 154 that, where a plaintiff makes a late amendment which substantially alters the case that the defendant has to meet and without which the action would fail, the defendant would be entitled to costs of the action down to the date of the amendment, and notes that some Australian cases have adopted that approach, for example, G**OWAY Travel Pty Ltd v Critchley (No 2) [2024] NSWSC 810. Mr Gooley submits that, but for WLLHLL’s change to alternative relief, its claim would conceivably have been dismissed with no orders made as to costs. Mr Gooley also contends that, “on one view”, the Defendants were the “true victors”, at least so far as they resisted a buy-out order at the substantial value which WLLHLL had attributed to it shares, and all parties will benefit from an en bloc sale of shares in Lanmar where they will share the proceeds in a manner that is proportionate to their shareholding in Lanmar.

9. Mr Gooley notes that it may have been open to the Defendants to seek their costs up to the late amendment of WLLHLL’s claim, but recognises several difficulties as to the conduct of the proceedings, to which I referred in the Primary Judgment, and submits this was a proper case for each party to bear its own costs of the proceedings. Mr Gooley also submits that “it could not be said that [WLLHLL] was the true victor when it was denied all of the primary relief it sought”; that “the relief ultimately granted by the Court was by consent of the Defendants”; and that:

“Had the relief ultimately granted been pleaded from the outset (and bearing in mind that the Defendants were open to a sale of Lanmar on the open market) the course of the proceedings may well have been very different.”

10. I am not persuaded that an order that each party pay their own costs of the proceedings would reflect the substance of the result of the case, or bring about a just result as to the costs of the proceedings. Here, the Defendants did not admit oppression, and put WLLHLL to the costs of establishing oppression, and it succeeded in doing so in respect of several significant matters. WLLHLL’s success in establishing oppression was always likely to bring about at least one alternative form of relief that it sought, including a winding up order, although I recognise that the Defendants also sought that order by way of Cross-Claim. Importantly, the Defendants could have, but did not, acknowledge the fact of oppression, either at the commencement of the hearing or as it continued and directed attention to questions of relief only, which would have significantly reduced the costs incurred by all parties in the conduct of the proceedings. In these circumstances, and subject to the question of the costs of a discrete issue in the proceedings to which I now turn, it seems to me that the starting point would be that costs would follow WLLHLL’s success in aspects of the proceedings.

Whether the costs of a discrete issue in the proceedings should be treated differently

11. Alternatively, Mr Gooley submits that the Court should make no order as to costs in relation to WLLHLL’s costs associated with determining the value of Lanmar. He points to the well-established principle that it may be appropriate to deprive a successful party of costs or a portion of costs if the matters on which they did not succeed took up a significant part of the trial, either by way of evidence or argument.

12. Mr Gooley refers to my decision in Re Gerringong Storage Pty Ltd [2025] NSWSC 446, where I summarised the applicable principles (at [3]ff) as follows:

“[I]n James & Ors v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [33], the Court of Appeal observed that, in cases in which a party has received only partial success:

‘1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order.

2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed.

3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the party’s costs of them. In this sense, “issue” does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law.’ …

In Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 (“Monie”) at [64]–[66], Campbell JA (with whom Mason P and Beazley JA largely agreed, including on this issue) observed that:

‘The usual circumstance in which a court will deprive the successful party of the costs relating to an issue on which the successful party lost, is when that issue is clearly dominant or separable. In Waters v P C Henderson (Australia) Pty Ltd (NSW Court of Appeal, 6 July 1994, unreported) Mahoney JA said, at 4–5:

“In my opinion the principles in this regard are properly stated in the Supreme Court Act and Rules. S76 of the Supreme Court Act provides that the Court has a discretion with full power to determine by whom and to what extent costs are to be paid. In the Rules, Pt52 r11 provides that:

‘If the Court makes any order as to costs, the Court shall, subject to this Part, order that the costs follow the event, except where it appears to the Court that some other order should be made as to the whole or any part of the costs.’

In the notes to the Rules, Pt52.11.2, the following appears:

‘Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.’”

That principle has frequently been approved in this Court: eg James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [32]; Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [6]. … ’

[Counsel] also refers to the summary of the relevant principles in Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 at [30]–[31], as follows:

‘The general rule can, in the discretion of the Court, be displaced in appropriate cases. Relevant authorities have been recently and conveniently collected by White J in Short v Crawley (No 40) [2008] NSWSC 1302 at [25]–[32].

Examples of instances where the general rule may be displaced include the following:

a. a costs order in favour of a successful party can be modified to reflect its failure on particular issues even if the successful party did not act unreasonably in raising those issues: Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (Supreme Court of New South Wales, Hodgson CJ in Eq, 3 June 1998, unreported, BC9802305 at 10–11); …

d. where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed: Hughes v Western Australian Cricket Assn (Inc) (1986) 8 ATPR 40-748 at 48,136;

e. where the proceedings involve multiple issues departure from the general rule may be warranted particularly where the losing party has succeeded on issues which occupied significant time. Nevertheless the application of the general rule may involve hardship where a party succeeds on some issues but fails on others particularly where the losing party succeeds on some issues. However unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Ritchie’s Uniform Civil Procedure NSW at [42.1.15]; Waters v PC Henderson (Australia) Pty Ltd (New South Wales Court of Appeal, 6 July 1994, unreported, BC9404952 at 5); Short v Crawley (No 40) at [27]–[28];

f. a successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party’s costs of them: Hughes v Western Australian Cricket Assn (Inc) at 48,136.’

In Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 (“Bostik”) at [38], the Court of Appeal also noted that, in relation to trials, it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party did not succeed took up a significant part of the trial, either by way of evidence or argument. I also addressed the circumstances in which costs could reflect a mixed result of proceedings in Re Metal Storm Ltd (subject to deed of company arrangement) [2014] NSWSC 1170 at [47] as follows:

‘In [Bostik] at [38], the Court of Appeal noted 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. However, the Court 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 of 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.”

Similarly, 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. In particular, the Court may deprive a successful party of the costs relating to an issue on which it lost when that issue is clearly dominant or separable: [Monie] at [64]; Doppstadt Australia Pty Ltd v Lovick & Son Development Pty Ltd (No 2) [2014] NSWCA 219 at [17]. Where there has been a mixed outcome in proceedings, and costs should be apportioned as between different issues, the Court will generally take a relatively broad brush approach, largely as a matter of impression and evaluation: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.’

In Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219, the Court of Appeal cited Monie and Bostik and observed at [18] 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. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v PC Henderson (Australia) Pty Ltd [(1994) 254 ALR 328.

● In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument*: Sabah Yazgi v Permanent Custodians Limited (No 2)* [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

● If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick (No 2) [2006] NSWCA 374 at [27].

● 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: New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

● A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

● Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.’

In Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [6]–[7], the Court of Appeal in turn noted that:

‘Section 98 of the Civil Procedure Act 2005 (NSW) confers on the Court a wide discretion with respect to costs. Under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) the general rule is that the Court is to order that costs follow the event. The “event” may be characterised in more than one way. Generally the “event” refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA. Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.’

The relevant principles for the determination of costs on an issue-by-issue basis were stated in [Bostik] at [38] per Beazley, Ipp and Basten JJA:

“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. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported).

In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Ltd (No 2) [2007] NSWCA 306 at [24]. A similar approach is adopted on appeal.

If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 at [27].

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: State of New South Wales v Stanley [2007] NSWCA 330 at [18] per Hislop J (with whom Beazley and Tobias JJA agreed).

A separable issue can relate to “any disputed question of fact or law” before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34].

Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation: James v Surf Road Nominees Pty Ltd (No 2), citing Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272.”’

In Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 2) [2019] NSWCA 19 at [5], the Court of Appeal noted that:

‘There is no issue as to the relevant principles. The discretion under Civil Procedure Act 2005 (NSW), s 98 is ordinarily exercised by requiring that “costs follow the event”: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. This default position was historically understood to mean (so as to preserve the practice, where any issue was tried with a jury, that those costs followed the outcome of that event) “that the costs of the several issues went to the party who succeeded on them respectively, while the general costs went to him who on the whole succeeded on the action” … But more recent authority favours the award of the costs of proceedings to the party successful overall without any differentiation as to issues, at least “unless a particular issue or group of issues is clearly dominant or separable” … And the costs arising from such issues have more readily been apportioned where the party successful overall is the plaintiff ... [citations omitted]’

In Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Ltd (No 3) [2023] NSWCA 316 at [7], the Court of Appeal observed:

‘… Under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) the “general rule” is that the court is to order that costs follow the event. The “event” may be characterised in more than one way. Generally the “event” refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] (Ward, Emmett and Gleeson JJA). …’

In Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) (No 2) [2024] NSWCA 21, the Court of Appeal summarised the applicable principles as follows at [11]–[12]:

‘Costs are in the broad discretion of the Court with the general rule being that they should follow the “event”: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. Generally, the “event” refers to the event of the claim and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] .

Underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the Court considers to be the responsibility of each party for the incurring of costs: Commonwealth Bank of Australia v Gretton [2008] NSWCA 117 at [121] (Hodgson JA, Mason P and Beazley JA agreeing).’”

13. I have also summarised the applicable principles in Re Quasar Constructions (Commercial) Pty Ltd (No 2) [2025] NSWSC 737 at [3]ff and again in Y**amari Ochre at [5].

14. Mr Gooley here points to the several criticisms that the Defendants had made of the expert valuation evidence led by WLLHLL, which were largely accepted in the Primary Judgment, although I was also not persuaded that I could accept the valuation evidence led by the Defendants. Mr Gooley submits, and I accept, that significant time and costs were here spent in respect of a distinct issue as to the value of Lanmar’s shares. Mr Gooley also submits that the fact that neither party was successful in establishing the valuation for which it contended in respect of those shares would warrant a departure from the general position as to costs, so that each party should be left to bear its own costs and its own disbursements in respect of matters relating to establishing the value of the shares in Lanmar. Mr Hughes in turn submits, by reference to authority, that it was not unreasonable for WLLHLL to advance an approach supported by expert evidence which the Court did not accept. I accept that submission, but the fact that it was not unreasonable for WLLHLL to advance a position does not support a conclusion that it be entitled to its costs of doing so, where the criteria that would otherwise support separate treatment of the costs of that issue are satisfied, and WLLHLL was not successful in that issue.

15. Here, it seems to me the expert evidence as to the value of shares in Lanmar, led by WLLHLL and then by the Defendants in response, took up a significant part of the hearing, and likely also involved significant disbursements. WLLHLL was not successful as to that issue, where it did not establish the value of the shares in Lanmar, nor did that evidence advance its position as to either a sale of shares in Lanmar by a receiver or a winding up. I also accept Mr Gooley’s submission that significant aspects of WLLHLL’s lay evidence, including a significant amount of inadmissible affidavit evidence, and at least part of the documentary tender, was directed to establishing the value of the shares in Lanmar; detailed opening and closing submissions were made as to questions of value; and the cross-examination of experts itself took up about a day of the hearing.

16. Adopting the approach indicated by Bostik and the subsequent case law to which I have referred above, I accept Mr Gooley’s submission that the issue as to the valuation of shares in Lanmar was here a substantial and separable issue such that the Court should differentiate between the issues on which WLLHLL was successful and that issue on which it failed. While WLLHLL has substantially succeeded in the substance of its claim and that supports an order for costs substantially in its favour, on the ordinary basis, it would not be a just result to require the Defendants to pay its costs of valuation evidence which was not accepted and which did not advance the basis on which it succeeded.

17. I note, for completeness, that WLLHLL had foreshadowed a possible application for a gross sum costs order, which it has not yet brought. Without expressing any final view, it is unlikely that it would succeed in such an application, where the identification of its costs of its lay and expert evidence as to valuation, for which the Defendants will not be liable, would require a degree of close analysis that is not properly or fairly undertaken in such an application.

Orders

18. For these reasons, I order that the Defendants pay the Plaintiff’s costs of the proceedings, except the costs associated with the Plaintiff’s lay and expert evidence concerning the valuation of shares in Lanmar Pty Ltd, as agreed or as assessed.

**********