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[2015] FCA 1081
Federal Court of Australia
2015-10-08
Gleeson J
Original judgment source is linked above.
Number of paragraphs: 37
Counsel for the Prospective Applicants: Mr D Greenburg
Solicitor for the Prospective Applicants: Ashurst Australia
Counsel for the First Prospective Respondent: Mr M Condon SC with Ms S Tame
Solicitor for the First Prospective Respondent: Judd Commercial Lawyers
Solicitor for the Second Prospective Respondent: Mr MA Easton of K&L Gates
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 848 of 2015
JUDGE: GLEESON J DATE OF ORDER: 8 OCTOBER 2015 WHERE MADE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 848 of 2015
JUDGE: GLEESON J DATE: 8 OCTOBER 2015 PLACE: SYDNEY
REASONS FOR JUDGMENT 1 On 21 August 2015, I made orders, by consent, requiring the prospective respondents ("Stanton" and "Qube" respectively) to give preliminary discovery ("preliminary discovery orders"). I reserved the question of costs. 2 The prospective applicants ("Prinsloo parties") seek the following costs orders: (1) Each party is to bear its own costs of the application for preliminary discovery; (2) As to the costs of complying with the preliminary discovery orders, the Prinsloo parties are to pay the costs of Stanton and Qube unless, on or before 18 December 2015 (or such date as may be directed), the Prinsloo parties commence substantive proceedings. In the event that substantive proceedings are commenced, the costs of complying with the preliminary discovery orders will be costs in those proceedings. 3 Stanton and Qube each seek orders that the Prinsloo parties pay their respective costs of the preliminary discovery application and of complying with the preliminary discovery orders. In the alternative, Stanton submitted that a contingent costs order should be made in respect of both the costs of the application and the costs of compliance, and that the order ought to depend on proceedings being brought in this Court within a particular time rather than being triggered if the Prinsloo parties chose to bring substantive proceedings in another forum. The justification for the qualification to the alternative order was not explained. 4 In the alternative, Qube submitted that the Prinsloo parties pay the costs of the preliminary discovery application and of compliance with the preliminary discovery orders, unless on or before 31 October 2015 the Prinsloo parties commence substantive proceedings against Qube. In the latter case, Qube submitted that those costs should be costs in the cause. 5 Each of the parties lodged written submissions in support of their respective positions.
Background 6 The application for preliminary discovery was made on 17 July 2015. By affidavit sworn 17 July 2015, the first prospective applicant ("Mr Prinsloo") gave the following evidence in support of the application: (1) The Prinsloo parties purchased shares in Oztran Aust Pty Ltd ("Oztran") from Stanton, apparently pursuant to a Share Sale Agreement made on about 14 May 2012. Stanton continued to own the majority of the shares in Oztran. The Prinsloo parties provided substantial consideration for the purchase; (2) Oztran conducted a trucking business at Port Hedland, Western Australia; (3) Mr Prinsloo on behalf of the Prinsloo parties did work to improve the value of Oztran at the request of Brent Stanton ("Mr Stanton"), the sole shareholder and director of Stanton; (4) In early 2013, Mr Stanton told Mr Prinsloo that he would begin looking for a purchaser to acquire Oztran's business. In January 2014, Mr Stanton told Mr Prinsloo that two parties, including Qube, were interested in acquiring "our operations"; (5) On about 3 June 2014, Mr Stanton told Mr Prinsloo that it had been agreed that Oztran would be sold to Qube and that Qube would be taking over Oztran from 30 June 2014; (6) In about June 2014, Qube purchased 100% of the shares in Oztran. Qube's annual report for the financial year ended 30 June 2014 states: On 1 July 2014, the Group acquired 100% of Oztran Aust Pty Ltd, Oztran Assets Pty Ltd and Stanton Oztran Pty Ltd together with certain equipment bassets (Oztran). Oztran is a bulk haulage transport business based in Port Hedland Western Australia. The purchase price for Oztran was approximately $25.1 million with a further maximum amount of $9 million in contingent consideration payable subject to Oztran business outcomes and performance thresholds over a 3 year period. (7) After the sale, Mr Stanton failed to provide Mr Prinsloo with any relevant details including the sale price, the dates on which payments were to be made by Qube and how it was intended that the sale proceeds obtained from Qube would be applied; (8) In April 2015, Mr Stanton said that he would get Qube to pay Mr Prinsloo an unspecified amount of money; (9) To date, none of Stanton, Mr Stanton and Qube have paid the Prinsloo parties for their proportion of the shares in Oztran purchased by Qube. Nor have the Prinsloo parties received any dividends in relation to their shares in Oztran. 7 Mr Prinsloo deposed to his belief that the Prinsloo parties may have cause to commence proceedings against Stanton and Mr Stanton to seek damages for breach of contract, misleading or deceptive conduct and breach of trust. He considers that it may also be necessary to bring proceedings against Qube to seek a mandatory injunction requiring Qube to make future payments under its sale contract to the Prinsloo parties rather than Stanton. 8 Mr Prinsloo also gave evidence of substantial efforts to determine whether he has a cause of action against Stanton or Qube including: (a) Multiple unsuccessful attempts to speak with Mr Stanton, in circumstances which led Mr Prinsloo to believe that Mr Stanton was avoiding him; (b) Unsuccessful efforts to obtain information through Mr Stanton's accountant and lawyers; and (c) Unsuccessful efforts to obtain information through Qube's lawyers.
6 August 2015 hearing 9 When the application was first listed, the Court was informed that Stanton intended to oppose part of the application. Qube did not appear but counsel for the prospective applications said that an accommodation had been reached with Qube. Accordingly, Stanton was ordered to file and serve any evidence and submissions in response to the application, and the application was listed for hearing at 2.15 pm on Friday 21 August 2015. (By reason of a clerical error, Qube was also ordered to file and serve evidence and submissions.)
Documents ordered to be produced 10 Stanton is required to produce: (1) Documents constituting the agreement(s) by which Qube purchased Stanton's shares in Oztran; (2) Documents recording the methodology used, to be used, or otherwise setting out the basis on which Oztran's shares were valued by Qube and Stanton; (3) Any share certificates which were issued by Oztran in the name of Stanton, Qube, Christiaan Albrecht Prinsloo, Prinwalla Holdings Pty Ltd or Kandabe Pty Ltd; (4) Any payment directions issued by or on behalf of Stanton to Qube in respect of the purchase price payable by Qube for Stanton's shares in Oztran; (5) Any transfer documents by which Stanton's shares in Oztran were transferred to Qube; (6) Any annual financial reports which were issued by Oztran to Stanton or Qube for the financial years ended 30 June 2012, 30 June 2013 and 30 June 2014; (7) Any current and historical versions of the constitution of Oztran which were sent to or otherwise received by Stanton or Qube; and (8) Any contracts or agreements (excluding individual purchase orders) which were entered into by either Highrock or Oztran with Consmins in the period between 1 January 2012 and 30 June 2014. 11 Qube is required to produce: (1) Any Share Sale Agreements between Stanton and Qube in respect of the sale of shares in Oztran from Stanton to Qube; (2) All correspondence exchanged between Qube and Stanton discussing or recording the methodology used, to be used, or otherwise setting out the basis on which Oztran's shares were valued by Qube and Stanton; (3) Any share certificates which were issued by Oztran in the name of Stanton, Qube, Christiaan Albrecht Prinsloo, Prinwalla Holdings Pty Ltd or Kandabe Pty Ltd; (4) All payment directions issued by Stanton to Qube in respect of the purchase price payable by Qube for Stanton's shares in Oztran; (5) Any transfer documents by which Stanton's shares in Oztran were transferred to Qube; (6) All annual financial reports which were issued by Oztran to Stanton or Qube for the financial years ended 30 June 2012, 30 June 2013 and 30 June 2014; and (7) All current and historical versions of the constitution of Oztran which were sent to or otherwise received by Stanton or Qube.
Extent of Prinsloo parties' success 12 The Prinsloo parties contended that they have succeeded in obtaining orders for preliminary discovery of all the documents set out in the schedule to the originating application. They argue that an objective comparison of the orders against the categories set out in the schedule to the originating application reveals that (with the exception of cosmetic changes) there has been no substantive amendment to reduce the scope of the documents which Stanton and Qube are required to produce. 13 Stanton submitted that this is plainly incorrect and, in support of this submission, has provided a document showing the differences between the documents sought in the application and the documents required to be produced. Having considered that document, I do not accept Stanton's submission on this point. In my view, the differences are insubstantial. In particular, I do not accept that a sensible reading of the schedule to the originating application would have required the production of computer hard drives. Nor do I accept that the burden of the orders was significantly lessened by the deletion of a definitional sentence which sought to extend references to Qube, Stanton and others to include their related parties, agents and so on. 14 For its part, Qube submitted that one category of documents was removed from the categories that it is required to produce and there was also "substantial re-drafting of other categories of documents as against Qube". In order to understand this submission, I compared the application with the orders made. Again, I reject the characterisation of the changes as involving "substantial re-drafting". In my view, the differences are minor.
Prinsloo parties' criticisms of Stanton 15 The submissions on behalf of Stanton take issue with three matters said to involve criticism of Stanton. 16 As to the first matter (that Stanton did not file evidence or submissions), I do not consider that to be a criticism but rather an observation relevant to the extent to which Stanton contested the application. 17 The second matter concerned whether the evidence supports the contention that Stanton (through Mr Stanton) "either evaded or ignored the Prospective Applicants' requests for the documents and information for nearly a year prior to the commencement of these proceedings". I agree with Stanton that the Prinsloo parties' submissions overstate the position. However, in my view, the evidence currently available supports a conclusion that that Mr Stanton either evaded or ignored Mr Prinsloo's attempts to ascertain the Prinsloo parties' rights arising from the sale of Oztran. On Mr Prinsloo's evidence, Mr Stanton failed to provide or to procure for Mr Prinsloo documents to which the Prinsloo parties were entitled, namely documents concerning the sale of their shares in Oztran. 18 As to the third matter (that Stanton says it may hold relevant documents in Namibia), I do not consider that to be a criticism but rather an observation relevant to the question whether the costs of obtaining documents from such a remote location ought fairly to be borne by the Prinsloo parties.
Legal framework 19 By s 43(2) of the Federal Court Act 1976 (Cth), except as provided by any other Act, the award of costs is in the discretion of the Court or Judge. 20 Rule 7.29 of the Federal Court Rules 2011 (Cth) provides: A person against whom an order is sought or made under [Division 7.3, concerning preliminary discovery] may apply to the Court for an order that: (a) the prospective applicant give security for the person's costs and expenses including: (i) the costs of giving discovery and production; and (ii) the costs of complying with an order made under [Division 7.3]; and (b) the prospective applicant pay the person's costs and expenses.
Case law 21 On behalf of Stanton, it was submitted that recent authorities suggest an approach consistent with the orders it proposes. Stanton's submissions referred to J&A Vaughan Super Pty Ltd v Becton Property Group Ltd [2013] FCA 340, ObjectiVision Pty Ltd v VisionSearch Pty Ltd (No 3) [2015] FCA 304 and Andrews Advertising Pty Ltd v Andrews [2011] NSWSC 244 at [54]-[57] as cases in which the Court declined to make a contingent costs order of the kind now sought by the Prinsloo parties. I was also referred to C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [50] and Steffen v Australia and New Zealand Banking Group Ltd [2009] NSWSC 883. The main consideration influencing these decisions appears to be the extraordinary nature of the jurisdiction to order preliminary discovery, and the undesirability of leaving a party out of pocket to await some unspecified future event. 22 Qube relied on the following passage in J&A Vaughan Super Pty Ltd v Becton Property Group Ltd [2013] FCA 340: 16. Principle and the authorities indicate that it is not useful to speak of a conventional rule as to costs in cases such as the present: see also Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39; (2009) 182 FCR 124 at 146-147 [90] per Flick J. The disposition of costs will depend on the circumstances of the case, including the conduct of the parties, the likely nature of any prospective cause of action and the likely passage of time before any such matter would be resolved at trial. Section 37M of the [Federal Court of Australia 1976 (Cth)] should also be borne in mind. 17. …, as has been repeatedly affirmed, the jurisdiction to order preliminary discovery is an extraordinary one since an order for preliminary discovery involves an invasion of the prospective respondent's private affairs in order to determine whether or not a case can properly be brought against the prospective respondent. This feature has been said to justify an order that the preliminary discovery applicant pay the respondent's costs of the preliminary discovery application even when the application is successful. 18. …. As Besanko J said in [Procter v Kalivis (No 3) [2010] FCA 1194] at [17], "[t]here is a sense in which a respondent is entitled to remain passive until the applicant makes out a case for preliminary discovery". Many matters may legitimately inform a prospective respondent's conduct in this regard. …. 23 Contingent costs orders have been made in EBOS Group Pty Ltd v Team Medical Supplies Pty Ltd (No 3) [2012] FCA 48; (2012) 199 FCR 533 at [120] ("EBOS") and ED Oates Pty Ltd v Edgar Edmondson Imports [2012] FCA 356 ("ED Oates"). They were also made in Cappuccio v Australia and New Zealand Banking Group [1999] FCA 1188; SmithKline Beecham plc v Alphapharm Pty Ltd [2001] FCA 271; and Newcrest Mining Limited v Apache Northwest Pty Ltd (No 2) [2008] FCA 1663. However, it was submitted that in ED Oates, the Court's brief reasons do not disclose whether an alternative costs order was proposed or why Kenny J considered a contingent costs order more appropriate than a non-contingent order that the prospective applicant pay the prospective respondents' costs. In EBOS, the form of order had been proposed by the prospective applicants and not disputed by the prospective respondents. 24 In Novartis AG v Agvantage Pty Ltd [2012] FCA 160, Jagot J ordered that each party bear its own costs where preliminary discovery orders were made by consent, relying on the general principle in Re Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 625 (McHugh J) that: If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. 25 In Dallas Buyers Club LLC v iiNet Ltd (No 3) [2015] FCA 422 at [2], Perram J noted that an application for preliminary discovery is not an ordinary proceeding, in that no rights are determined and no facts relating to any actual suit are found.
Prinsloo parties' submissions 26 On behalf of the Prinsloo parties, it was submitted that, while the Court has an unfettered discretion in considering questions of costs under rule 7.29, the ordinary principle that costs generally follow the event applies and any costs order should serve the overriding purpose of facilitating a just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. 27 It was submitted that it would be an extraordinary result if the Prinsloo parties were not only deprived of their own costs, but were ordered to pay Stanton and Qube's costs of the application. This would be a most unfair result given: (a) the extent of their success in obtaining the orders sought; (b) their reasonableness in bringing the application only after making reasonable inquiries to obtain copies of the relevant documents; (c) Mr Stanton's conduct in either evading or ignoring requests for documents; (d) The reasonable scope of the documents sought; and (e) Stanton and Qube's approach to addressing the ancillary question of costs has been disproportionate. 28 The Prinsloo parties' submissions did not specifically address why each party should bear its own costs of the application. I have proceeded on the basis that they rely on the same facts as set out immediately above. 29 In support of the proposed contingent costs order, the Prinsloo parties relied upon the following matters: (a) The likely quantum of any claim that may be brought against Stanton will substantially exceed the costs of complying with preliminary discovery, in which case that order is likely to be unenforceable in practice. It would be an unfair result if the Prinsloo parties were forced to pay Stanton and Qube's costs in circumstances where they may have a bona fide set-off, counterclaim, or cross-demand which can only be vindicated in subsequent proceedings. (b) Stanton has yet to provide any explanation or defence to the evidence and assertions made by the Prinsloo parties (both before and after the filing of this application). Based upon the complexities and likely future timetable of this case, there will undoubtedly be further facts arising that inform the totality of the circumstances that are relevant to the issue of costs. (c) No evidence or justification has yet been given for why Stanton, a company based in Western Australia, has no staff there and why evidence relevant to a transaction that took place there is in Namibia. This emphasises the appropriateness of a contingent costs order: if and when proceedings are on foot, Stanton will rightly have the opportunity to put on evidence explaining this peculiarity, both for costs purposes and otherwise. (d) A contingent costs order will not prejudice Stanton and Qube and will avoid the costs of preliminary discovery being postponed indefinitely. Three points are particularly relevant in this regard: (i) First, a contingent costs order will promote certainty in this case by mandating that the Prinsloo parties either commence proceedings by on or before 18 December 2015 or pay Stanton and Qube's costs. This will require the Prinsloo parties to act expeditiously, given that documents are only being produced on 2 October 2015. (ii) Secondly, if the Prinsloo parties do commence proceedings then the costs of preliminary discovery will be treated just as the costs of discovery would have been, thus leaving Stanton and Qube in no better or worse position than they would have been otherwise had the Prinsloo parties commenced proceedings without the information that was necessary. (iii) Thirdly, if the Prinsloo parties had commenced proceedings without the information sought by preliminary discovery then all parties (and the Court) would have been exposed to the risk of unnecessary and fruitless litigation. Preliminary discovery and a contingent costs order will thus have the effect of avoiding prejudice to all and promoting a just and efficient result.
Stanton's submissions 30 Stanton submitted: (1) By making its proposed orders, the Court would act consistently with the Court's recent approaches to costs for preliminary discovery, and demonstrate predictability; (2) A prospective respondent should not be penalised as to costs, where, as here, it has taken a commercial rather than a confrontational approach to the application. The Court should not make costs orders that would discourage a prospective respondent from taking a commercial approach in responding to a preliminary discovery application; (3) On the other hand, Stanton's proposed orders have the effect of incentivising a prospective applicant from seeking only documents to which it is truly entitled; (4) Stanton would be out of pocket if required to bear its own costs of the preliminary discovery application and no substantive proceedings are ever commenced; (5) The extraordinary nature of the orders justifies the costs orders it proposes; (6) It is not clear whether the documents provided pursuant to the preliminary discovery orders will be discoverable in any later proceedings; and (7) A prospective respondent should not be required to contest preliminary discovery in order to recover its costs.
Qube's submissions 31 Qube submitted: (1) The real dispute in this case is between the Prinsloo parties and Stanton; (2) There is no allegation that Qube had any knowledge of any alleged interest of the Prinsloo parties in Oztran at the time that it purchased the Oztran shares; (3) Qube has behaved reasonably in its approach to the application, negotiating appropriate amendments to the list of documents to be discovered, and not subsequently contesting the application (except in relation to costs) despite the "clear inadequacies" in the application brought against it. Qube was entitled to remain passive until the applicants made out a case for preliminary discovery; (4) If the orders sought by Qube are not made, Qube is likely to be left "out of pocket" indefinitely while it awaits some indeterminate future event (presumably the resolution of the dispute between the Prinsloo parties and Stanton) in relation to which it will have limited control; and (5) Qube has been subjected to an extraordinary exercise of Court power involving an invasion of its private affairs. 32 Qube's submissions note that Qube does not accept that the Prinsloo parties have disclosed any cause of action against Qube upon which relief might be granted, or otherwise disclosed any reasonable basis for a belief that any cause of action may exist against Qube. I accept that the Prinsloo parties have not articulated a precise cause of action, but I do not accept that they have not disclosed a reasonable basis for a belief that any cause of action may exist against Qube. In my view, the asserted facts suggest a reasonable basis for a belief that the Prinsloo parties have a prior equitable interest over shares presently held by Qube, which they would be entitled to assert against Qube. In saying this, I do not mean to suggest that the Prinsloo parties do in fact have such a right, only that the requisite reasonable basis test appears to be satisfied.
Consideration 33 I am not convinced that each party should bear its own costs of the discovery application because, in my view, those costs should be borne by the Prinsloo parties if, in due course, they decide against commencing substantive proceedings. I am not satisfied that either Stanton or Qube has conducted itself in a manner which would necessarily warrant that they should bear their own costs: they ultimately consented to the application save as to costs. 34 In my view, a contingent costs order (in relation to both the costs of the application and the costs of compliance) is appropriate in this case because, on the current evidence, there is a real issue as to whether preliminary discovery has been required because the Prinsloo parties have not had access to documents to which they are entitled. If it is the case that they hold or held shares in Oztran, they should have been able to obtain many of the documents ordered to be produced (the share certificates being an obvious example, if they exist, and the share sale agreements) without approaching the Court and should not be liable for the costs of the application. However, I am not presently able to adjudicate on the Prinsloo parties' entitlement to the documents apart from an order for preliminary discovery. Accordingly, I consider the appropriate order to be an order in the nature of costs in the cause: cf Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 at [21]. 35 At present, I do not have reason to believe that a contingent costs order will expose Stanton and Qube to an indefinite delay in recovering its costs. On its currently foreshadowed ambit, the issues in any prospective proceeding are relatively confined and Stanton and Qube will be have the benefit of an order that the Prinsloo parties pay their costs in the event that proceedings are not commenced within a reasonably short period. 36 In reaching this conclusion I note that the cases where a court has expressed disapproval of a contingent costs order did not, so far as I can tell, involve an application for documents evidencing a right to an asset claimed by the applicant, or evidencing dealings with such an asset.
Conclusion 37 I will make a contingent costs order. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.
Prinsloo
Stanton