Management Services Australia Pty Ltd v PM Works Pty Ltd

The costs applications

1. PPPM seeks orders that: 1. it pay one-half the defendants' costs, assessed on the ordinary basis (I refer to "defendants" because there was a second defendant, Mr Banerji, who was the principal of PM Works); 2. the defendants pay its costs of reviewing and preparing replies to, and preparing cross-examination upon, two affidavits that, on late notice, were not read for the defendants; 3. alternatively, that it should pay the defendants' costs assessed on the ordinary basis.
2. The defendants seek orders [1] that: 1. PPPM pay their costs; 2. those costs be assessed on the ordinary basis up until 8 September 2017 and on the indemnity basis thereafter; and 3. Mr Paul Finnerty, the sole director and shareholder of PPPM, be jointly and severally liable with PPPM for the payment of those costs.

Outline of the parties' submissions

1. The parties provided detailed written submissions, and evidence and other material in support of their submissions. I do not propose to set out the detail of those submissions; their substance will be apparent both from the brief description that follows and from the reasons that I give for making the costs orders that will in due course follow.
2. Mr Assaf of Counsel, for PPPM, referred to the agreed statement of issues. He noted that, by reason of PM Works' intransigent (my word, not his) position on the quasi-pleadings, PPPM had been forced to put on detailed evidence to prove that which should have been (and, very late in the day, was) admitted. He submitted that PPPM had succeeded on the main issues, and that those issues occupied the bulk of preparation and court time.
3. Mr Assaf turned his attention to the two affidavits that were not read. They were affidavits sworn by a Mr Gareth Shaw. The first in particular was detailed, comprising 21 pages of text and an exhibit of 141 pages. The second affidavit (a reply affidavit) was shorter, but nonetheless carried with it a substantial exhibit, comprising 125 pages. Mr Assaf observed (and experience says that his observation must be correct) that PPPM had incurred substantial cost in considering those affidavits, in preparing affidavits in reply (which became at least in part unnecessary once Mr Shaw's affidavits were not read) and in preparing cross-examination of Mr Shaw.
4. The hearing commenced on 3 October 2017. It was not until the following day, 4 October 2017, that the defendants announced that they would not be calling Mr Shaw.
5. Mr Assaf referred to other conduct on the part of the defendants that, he said, demonstrated lack of attention to the requirements of s 56 of the Civil Procedure Act 2005 (NSW). He instanced the numerous and lengthy objections to evidence, many of which were either withdrawn (it must be said, after some judicial pressure was applied) or disposed of summarily.
6. As against that, it should be noted that the affidavits of Mr Finnerty invited that attitude. They were ill-disciplined, and appear to have been prepared, in substantial measure, without a great deal of regard for the requirement of relevance. As I observed in my earlier reasons [2] , it was "totally unclear why it was necessary for his evidence to be comprised in so many affidavit (which between them comprised 544 paragraphs spread over 151 pages, without annexures)…".
7. Ms Cairns of Counsel, for the defendants, submitted, quoting from my earlier reasons [3] , that PPPM's case had failed "in all the ways in which it has been put" and that it "should be dismissed". It was that dismissal she submitted, that was the relevant event for the purposes of UCPR r 42.1.
8. As to indemnity costs, Ms Cairns relied on an offer of compromise served on 8 September 2017 (more than three weeks before the hearing commenced). By that offer, the defendants offered to settle on the basis that there be judgment for them but with no order as to costs. The letter serving the notice stated that the defendants' costs up until that date were of the order of $540,000, including $220,000 for disbursements. It asserted that costs would be recovered at about two-thirds on an ordinary basis assessment, and that disbursements would be allowed in full. In those circumstances, the letter said, the recoverable costs as at 8 September 2017 were about $434,400. This, it said, represented "a substantial compromise".
9. As to the application for a third party costs order against Mr Finnerty, Ms Cairns submitted that he, as the sole director and shareholder of PPPM, was the person who had promoted and caused it to conduct the litigation, and who (as he admitted in the course of his cross-examination) [4] had a stake in the outcome that was vital to his financial future.
10. Mr Assaf submitted in reply (for both PPPM and Mr Finnerty) that there was no basis for ordering indemnity costs, because it had been reasonable for PPPM to continue its case even after service of the offer of compromise. He repeated his earlier submissions as to the extent of PPPM's success, and put that this had to be considered among the various "circumstances of the case" [5] to be considered in relation to indemnity costs.
11. Mr Assaf submitted that there was no evidence that the defendants' costs, at the date of service of the offer of compromise, were of the order of $540,000 when the offer was served. In any event, he submitted, PPPM was then entitled to rely on the estimate of costs that had been given in the defendants' security for costs application (which had been decided back in July 2016), and should not be prejudiced by the apparent increase of costs from those estimated to those stated in the later letter.
12. Mr Assaf submitted, further, that any award of indemnity costs would be punitive rather than compensatory, and that awarding costs for a punitive purpose was outside the scope of the discretion given by s 98 of the Civil Procedure Act and (of present relevance) UCPR r 42.15A.
13. As to the application for a costs order against Mr Finnerty personally, Mr Assaf submitted that the undoubted discretion to make such an order should be exercised "sparingly" (he cited Callinan J in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [6] ), and for some reason other than that, simply, the sole director and shareholder of a company caused it to pursue litigation (he cited Muir J in Rushton (Qld) Pty Ltd v Rushton (NSW) Pty Ltd [7] ). In particular, Mr Assaf submitted, the Court, in exercising the discretion to order costs against a non-party, should not act so as to render nugatory the long-standing principle of separate and distinct corporate personality, and the long-standing ability of persons to insulate themselves from personal liability by conducting their business through corporate entities.
14. Thus, Mr Assaf submitted, there must be something more than that, simply, the person against whom the order was sought was the controlling mind (as in this case, sole director and shareholder) of the corporation. In the usual case, there must be something amounting to conduct that could properly be stigmatised as unreasonable.
15. Ms Cairns submitted in reply, as to the application for indemnity costs, that r 42.15A itself applied unless the court ordered otherwise. Thus, she submitted, it was a rule of court that bore upon, and thus limited, the general discretion conferred by s 98(1) of the Civil Procedure Act. She submitted that it was for PPPM to show circumstances that would justify the court in ordering otherwise, and that PPPM's evidence and submissions failed to do this.
16. Ms Cairns accepted that there was no evidence that as at 8 September 2017 the defendants' costs were in the asserted amount of $540,000 (or about $434,000 in recoverable costs). However, she submitted, it must have been apparent to PPPM that the amount of costs incurred to that date would have been higher than those that had been estimated for the purposes of the security for costs application. She submitted that there had been numerous matters, including amendment (or further amendment) of PPPM's list statement and the filing of yet further evidence by PPPM, that had caused costs to increase beyond the original estimate.
17. As to the application against Mr Finnerty, Ms Cairns submitted that it was not necessary to characterise his conduct as "unreasonable"; but that, if it were, it should be so characterised.

Decision: costs

1. I do not think that this is a case where the costs discretion is to be exercised by analysing the individual issues comprised in the parties' statement of issues, and identifying success or failure on each. The requirement for parties to state the real issues in dispute is contained in the usual order for hearing [8] . The parties' compliance with that requirement should not become an instrument to be utilised for warfare waged as to costs. In the present case (and in almost every other case with which I have dealt over the years) I required the parties to agree the real issues in dispute. That is done for a number of purposes, including: 1. to identify what those issues are; 2. to facilitate evidentiary rulings, in particular as to relevance; 3. to provide some structure to the submissions that will be made at the conclusion of the evidence; and 4. to provide what is in effect a map that can be utilised for approaching judicial resolution of the issues that the parties have identified.
2. Again, and in my view a fortiori, it is inappropriate to take a document prepared at the Court's direction, for purposes including those that I have just identified, and use it as a weapon in the all too frequent war on costs that is conducted after the substantive disputes have been resolved.
3. I do of course accept that there will be cases where, quite apart from formal statements of issues in dispute, it is apparent that there are dominant and severable issues that of themselves engender large amounts of costs, and that the resolution of those issues may run contrary to the ultimate decision in the case. I accept that in such cases the general discretion to make costs orders should be exercised with regard to those issues, and that it may be appropriate to fashion costs orders to take account of success or failure on dominant and severable issues. Nothing in what I have just said should be taken to deny that well recognised approach, in appropriate cases, to the exercise of the costs discretion. I say no more than that the exception should not become the rule; and that, in particular, it should not become the rule simply because, for reasons that I hope are obvious, the parties have identified and stated the real issues for decision.
4. Stepping back from the detail (and from the inevitable tendency that submissions on costs have to identify success in particular battles whilst ignoring failure in the war), neither party has covered itself with glory in the preparation and running of this litigation. The frequent amendments to PPPM's case (including one made at the close of the evidence, that was rejected for reasons I gave [9] ) and the diffuse and undisciplined nature of Mr Finnerty's evidence, undoubtedly caused the defendants to incur costs that they would not have incurred had the preparation and presentation of PPPM's case been more disciplined.
5. Equally, the defendants' approach (including, as I have recorded, denying the existence not only of the partnership, or of a joint venture agreement, but of any agreement at all) must have caused PPPM to incur costs that would not have been incurred had a more considered approach been taken.
6. Nonetheless, the parties chose to fight their dispute in that way. In my view, subject to the particular case of Mr Shaw's evidence, the court should not be deflected from exercising the costs discretion by the consideration that, with greater thought and greater discipline, a much neater and shorter case could have been propounded for decision.
7. I turn to the particular question of Mr Shaw's evidence. Ms Cairns submitted that the decision was made in the context of the case, and that making it saved time and costs. The consequences - saving of time and costs - may be accepted. In any event, Ms Cairns submitted (and this is rather a loose paraphrase), the real evidence that led to the resolution of the issues with which Mr Shaw's affidavits were concerned came from Mr Finnerty and Mr Banerji, and from the various documents that each of them produced. It is tempting to ask why, if that were so, it was thought necessary to put on in addition Mr Shaw's lengthy (with their exhibits) affidavits.
8. I accept that it is appropriate for forensic decisions to be made that might have the effect of saving time and costs. I accept, further, that in the ordinary way it would be unwise to penalise a party for making such decisions by depriving it of the costs of preparing evidence that, ultimately, was not put before the court. However, on the particular facts of this case (and bearing in mind as I have said the defendants' intransigent attitude towards the existence of any contract), I do not think that it would be just to require PPPM to pay what must have been the substantial costs of preparation of detailed affidavits that, very late in the day and without contemporaneous explanation, were not read. Further, I think it would be unjust not to recognise in some way the obvious fact that PPPM must have incurred costs in respect of those affidavits: both in considering them and preparing replies, and in preparing cross-examination.
9. In the ordinary way, I would seek to reflect those conclusions by making some percentage allowance against the overall costs that otherwise might be awarded. In this case, however, I feel that the exercise would be more arbitrary then it usually is. (Another way of putting this might be to say that the exercise would be less capable of even superficial justification than is usually the case.) Whilst I would always seek to minimise costs incurred in the assessment process, I think I must recognise that assessors are peculiarly equipped to decide what costs are associated with the preparation of affidavits and the preparation of responses thereto and cross-examination thereon. Much as I generally deplore putting the parties to a further burden, that I think is the course to be taken in this case.
10. The position reached to this point is that: 1. subject to what follows, PPPM should pay the defendant's costs of the proceedings; 2. the costs so payable should not include any costs referable to the preparation of Mr Shaw's two affidavits; 3. the defendants should pay PPPM's costs of considering and preparing replies to those affidavits and of preparing cross-examination on them; and 4. costs should be set off.

Decision: indemnity costs

1. There can be no doubt that the offer of compromise represented a significant advantage to PPPM, when its position under that offer is contrasted with the position that presently applies. Had it accepted the offer, it would have been responsible for its own costs to date (and it would have saved the costs of further preparation and of the six day hearing), and it would have had no liability for the costs incurred and to be incurred by the defendants.
2. I accept Mr Assaf's submission that there is no independent evidence of the amount of the defendants' costs as at the date of service of the offer of compromise. However, it seems to me, that goes nowhere.
3. First, Ms Cairns' submission, that there were events occurring between July 2016 and September 2017 that caused the defendants to incur costs beyond those estimated, is correct. PPPM must have been aware of this, because most of those were matters of its own doing.
4. Second, and more significant, is the fact that there is no evidence whatsoever from PPPM that it relied in any way upon the estimate of costs given for the purposes of the application for security for costs in mid-2016. Specifically, there is no evidence from PPPM that it continued with the litigation on the faith of that estimate, and that it would not have done so had it known that the costs would have increased substantially, as apparently they did.
5. The exercise of the discretion conferred (as it now is) by r 42.15A must bear in mind the purpose of the rules relating to offers of compromise, which is to encourage settlement of disputes and thus give effect to the overriding policy apparent from s 56 of the Civil Procedure Act. There is authority that departure from the general position established by the rule requires circumstances that are out of the ordinary, or in that sense "extra-ordinary". See Consolidated Lawyers Ltd v Abu-Mahmoud [10] and Morgan v Johnson [11] ; cited with approval in Walker v Harwood [12] .
6. Further, in my view, since it was PPPM that did not accept the offer (and thereby exposed itself to the consequences of non-acceptance), it is PPPM that should show circumstances that are out of the ordinary: see Caine v Lumley General Insurance Ltd (No.2) [13] . Mr Assaf submitted that it was not unreasonable for PPPM to reject the offer at the time it was made. However, as Basten JA said in Walker [14] , "the reasonableness of the offeree in rejecting the offer will not of itself justify a departure from the ordinary costs rule".
7. In my view, there is nothing in the facts that have been disclosed by the material in support of the parties' costs applications that could justify displacing the general operation of r 42.15A.
8. It follows that the costs to be paid by PPPM to the defendants should be assessed: 1. on the ordinary basis up until 8 September 2017; and 2. on the indemnity basis thereafter.
9. For the avoidance of doubt, I repeat that the order for indemnity costs from 8 September 2017 does not displace what I have said as to the exclusion from costs payable of costs referable to Mr Shaw's two affidavits.

Decision: the application against Mr Finnerty

1. In my view, this application should fail. I accept, as Ms Cairns submitted, that Mr Finnerty is the guiding mind of PPPM. I am prepared to accept also that it was he who caused PPPM to commence the litigation and to conduct it to finality, and he who funded it. It is clear that Mr Finnerty would have benefited substantially from success. But to state those propositions does no more than state that PPPM is a company that Mr Finnerty caused to be incorporated for the purpose of conducting "his" management training business. They do not indicate why the veil of incorporation should be, not so much pierced, as rent in twain.
2. To make the order sought with no more to justify it than the facts recited in the preceding paragraph would mean, in effect, that every entrepreneur in a similar situation would be exposed to the like risk. The power would become one exercised regularly and frequently, not sparingly. In my view, more must be shown to justify the making of the order.
3. There is nothing in the facts to suggest that it would be just to deprive Mr Finnerty of the advantages of separate legal personality. It is unnecessary to decide whether, as Mr Assaf submitted, it is necessary to characterise Mr Finnerty's conduct as unreasonable, before a third party costs order can be made against him. There is really nothing more than the fact that Mr Finnerty pursued his business through PPPM, caused PPM to commence and prosecute to finality (subject to any appeal) litigation relating to that business, paid the costs of doing so, and stood to receive the benefits of doing so. For the reasons I have tried to explain, that does not seem to me to justify the exercise of the undoubted discretion to make the order sought.
4. Were it necessary to characterise Mr Finnerty's conduct as unreasonable, I would not accept Ms Cairns' submission that it is appropriate to do so. There is nothing to show that Mr Finnerty (for example) proceeded in the teeth of advice that the claim was weak, or with knowledge that the claim was unlikely (even very unlikely) to succeed. I accept that the offer of compromise should have caused him, as the guiding mind of PPPM, to consider its prospects of success. There is however no evidence that he failed to do so; and a fortiori, no evidence that his decision to continue, in the face of the offer, was relevantly unreasonable. Hindsight analysis should not be applied for the purpose of characterising his conduct, retrospectively, in that way.
5. I note further (although Ms Cairns did not refer to it) that, in answer to the defendants' application for security for costs, Mr Finnerty undertook to put his personal assets at risk, and to accept joint and several liability for costs. However, that circumstance does not strike me as having any consequences favourable to the defendants. On the contrary, in my view, it tends otherwise. They did not accept Mr Finnerty's offer. Instead, they pressed ahead with their application for security (and obtained it). It strikes me as being a little inconsistent to have taken that position, no doubt for perceived (although legitimate) advantage at one stage, and now to be seeking to resurrect the proposal in connection with costs.
6. The application for a costs order against Mr Finnerty must fail.

Dispute as to admissibility of affidavit

1. As I have noted earlier, the defendants' costs applications were pressed not only through submissions (conformably with my directions) but by a notice of motion filed on 7 February 2018. Hammerschlag J gave leave for the filing of that notice of motion, and directed that it be dealt with by me without an oral hearing if (as is the case) I thought it appropriate to do so. His Honour also gave directions for submissions which included that the defendants should serve any submissions, no more than 10 pages in length, and evidence in reply to the plaintiff's evidence by 7 March 2018.
2. The defendants did serve submissions conformably with that order. They also filed and sought leave to rely on an affidavit of Christian Allan (a solicitor in the employ of the defendants' solicitor) sworn 8 March 2018. The plaintiff objected to that affidavit.
3. The first point is that the affidavit does not conform to the order made by Hammerschlag J because it cannot be described as being in reply to evidence served by the plaintiffs (they had served none). Ms Cairns submitted that the defendants sought to rely on the affidavit to rebut assertions of matters of fact in the plaintiff's submissions that were not justified by any evidence. That does not seem to me to bring the affidavit within the scope of the order made by Hammerschlag J.
4. The second point is that the affidavit included an exhibit. I was told that it exceeded 250 pages in length. I was not able to test that proposition, because the affidavit was e-filed, the exhibit (quite properly) was not filed, the defendants did not tender the exhibit on the costs application, and I was not provided with a hard (or any) copy.
5. I have some difficulty in seeing how a dispute over costs could justify the preparation and service of an affidavit including an exhibit of such length.
6. The third point is that I have not relied on anything said in the affidavit.
7. In the circumstances, there seems to be even less point than usual in deciding the objection to the affidavit in question, and I decline to do so.

Costs of the costs applications.

1. Each party has enjoyed a measure of success (or has suffered a measure of failure). The defendants' measure of success has been substantial (because they obtained costs, including after 8 September 2017 on the indemnity basis, with the exception of what I might call the "Shaw" costs). However, on another significant matter argued - the claim for and against Mr Finnerty personally - the defendants failed.
2. In the circumstances, the costs of the applications for special costs orders should lie where they fall, and be borne by those who incurred them.

Orders

1. I make the following further orders: 1. subject to orders 2, 3 and 6 below, order the plaintiff to pay the defendants' costs of the proceedings. 2. Order that the costs so payable not include any costs referable to the preparation of the affidavits of Gareth Douglas Shaw sworn 15 August 2016 and 29 June 2017. 3. Order the defendants to pay the plaintiff's costs of considering Mr Shaw's affidavits, preparing affidavit evidence in reply thereto and preparing cross-examination of Mr Shaw upon them. 4. Order that costs under orders 1 and 3 above be set off. 5. Order that such costs as are payable by the plaintiff to the defendants under the preceding orders be assessed on the ordinary basis up until 8 September 2017 and on the indemnity basis thereafter. 6. Order that the defendants' notice of motion filed on 7 February 2018 be otherwise dismissed. 7. Make no order as to the costs of the costs applications (including the defendants' notice of motion filed on 7 February 2018).

Endnotes

1. Including by notice of motion filed on 7 February 2018; these reasons deal also with that notice of motion.
2. At [12].
3. At [208].
4. Earlier reasons at [33].
5. Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 at [15] (Spigelman CJ, Beazley and McColl JJA).
6. [2001] HCA 26; (2001) 179 ALR 406 at [34].
7. [2004] QSC 47 at [12].
8. Practice SC Eq 3, annexure "3" at [16].
9. At [25] to [29] of my earlier reasons.
10. [2016] NSWCA 4 at [65] (Macfarlan JA, with whom Bathurst CJ and Tobias AJA agreed).
11. (1998) 44 NSWLR 578 at 581 - 582 (Mason P)
12. [2017] NSWCA 228 at [15] (Basten JA, with whom Payne JA agreed).
13. [2008] NSWCA 109 at [32] - [33], [35] (McColl JA, with whom Mason P and McClellan CJ at CL agreed).
14. At [17].

Amendments 16 March 2018 - Amended decision number on cover page. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2018