On 13 March 2020 judgment was entered in favour of the Plaintiff against the Second and Third Defendants, with reasons published ("the March Reasons"): see Wollongong Coal Ltd v Gujarat NRE Properties Pty Ltd [2020] NSWSC 254. I shall use the same abbreviations here as are used in the March Reasons and regard should be had to the March Reasons, particularly [1]-[14], [30]-[44], [91]-[98], [117], [124] and [178]-[182].
The Jagatramkas seek a variation of the usual order on costs, which is that the unsuccessful party pays the costs of the successful party, namely that the Jagatramkas only be required to pay 80 per cent of WCL's costs. It was agreed that the matter should be determined on the papers. I directed a regime for written submissions, and I have received the Jagatramkas' submissions dated 20 March 2020 ("DSCosts"), the WCL submissions in response dated 27 March 2020 ("PSCosts") and the Jagatramkas' submissions in reply ("Reply on Costs").
The basis advanced in DSCosts for the order sought is that WCL did not succeed on all of the claims it advanced in its Further Amended Statement of Claim:
1. WCL at the commencement of the hearing abandoned its claim that the entry by Mr Jagatramka into the ESA involved a breach of his fiduciary and statutory duties. The Jagatramkas' submissions prepared in advance of the hearing dealt with that issue in five pages and the Jagatramkas had to obtain an expert report dealing with the level of remuneration in the ESA.
2. WCL in the course of the hearing abandoned its claim that the proceeds of sale of shares in Properties had been inappropriately distributed to companies connected with the Jagatramkas.
3. WCL failed in what was described by the parties (and in the March Reasons) as the "Third Component" - i.e. a claim that the arrangement made by Mr Jagatramka for the sale of the shares in Properties involved breaches of fiduciary and statutory duties by the Jagatramkas.
The usual rule, which finds expression in r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), is that costs should follow the event unless the Court otherwise orders. In Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304, the Court (Beazley, Ipp and Basten JJA) summarised the law as follows at [38]:
"The principles governing the making of an order as to costs so as to reflect the time taken in dealing with a particular issue in which the successful party in the proceedings or on the appeal did not succeed were reviewed by this Court in Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373. Those principles may be summarised as follows:
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 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 & 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.
These principles were applied in City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57 at [22] and most recently in Turkmani v Visvalingham (No 2) [2009] NSWCA 279."
Both the Jagatramkas and WCL accept that the above statement authoritatively summarises the law. The Jagatramkas also refer to Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219, in which at [17] it was noted that the usual circumstances in which a Court will deprive the successful party of costs is where it has failed on a clearly dominant or separable issue.
WCL in PSCosts points to Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 at [24], in which it was said:
"It may be appropriate to order that a successful party be deprived of costs or a portion of the costs if the matters upon which that party is unsuccessful took up a significant part of the trial, either by way of evidence or argument."
In Yazgi, the Court of Appeal, in rejecting the contention that the Plaintiff should be deprived of her costs, noted, inter alia:
"…although there were multiple issues, none of the claims were inappropriately brought..."
In relation to the Third Component, the issue of the debt to equity swap and sale of the shares was, as WCL submits through PSCosts, integrally linked to the question of whether the Jagatramkas had the improper purpose in 2008: see [95] and [121] of the March Reasons.
It is true that WCL failed to establish any specific loss arising out of the sale of the shares in Properties, but the circumstances of the sale were relevant to, and closely connected with, WCL's principal case on which it succeeded, namely that the Jagatramkas had an improper purpose in 2008: see [93]-[95] and [121] of the March Reasons. The sale was also relevant in determining what loss WCL had in fact incurred as a result of WCL's claim on the First and Second Components. I do not think that the debt to equity swap and sale ought to be treated as a separate or discrete matter to warrant a reduction of WCL's costs.
WCL in the PSCosts contends that the Jagatramkas relied on the ESA to explain their occupation of Cliff Road, so the ESA was a matter relevant to their defence. That may be so, but WCL had sought to impugn the ESA and its terms and that is a different matter. The fact is, however, that no time was spent on this at the hearing and I am not able, even on the broad brush approach with which the Court is encouraged to take (see Doppstadt at [19] and Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 at [6]), to assess what would be a fair percentage figure to ascribe to this. There is also the problem that the Jagatramkas' reliance on the ESA as the basis for their occupation of Cliff Road renders it closely interwoven with the case on which WCL has been successful, so I do not think any broad brush reduction in respect of the ESA would be appropriate in any event. It is appropriate, however, to permit the Jagatramkas to offset against the costs payable by them the cost of the expert report obtained to establish that the rate of remuneration in the ESA was appropriate, the costs of obtaining that report, and nine per cent of the fees of Counsel for the written submissions of 29 October 2019 (i.e. 5 out of 57 pages of that document).
In relation to the payments to subsidiaries - this was abandoned late in the hearing but it is a matter on which very little time was spent. The Jagatramkas' Reply on Costs seemed to accept that this was so, but contended that this issue could be coupled with the other matters. Since I do not accept that there should be any percentage reduction for the other matters, I do not accept that any reduction should be made for this minor issue.
I should mention that in the Reply on Costs, the Jagatramkas sought to raise new matters not canvassed in the DSCosts: see paragraphs 3(d) and 4. I do not think that those additional matters should be considered but, in any event, I would not regard the fact that additional time was spent in cross examination of witnesses to deal with aspects of WCL's case, on which it was overall successful, as providing a basis for varying the usual costs order.
I, therefore, will order the Jagatramkas to pay WCL's costs on the ordinary basis, as agreed or assessed, but subject to offset of an amount, as agreed or assessed, representing the cost of the expert report obtained by the Jagatramkas in respect of the ESA, the costs (as agreed or assessed on the ordinary basis) of obtaining that report, and nine per cent of Counsel's fees for the written submissions of 29 October 2019.
The WCL costs are to include 75 per cent of the costs (on the ordinary basis) of this application for costs, to reflect the fact that the Jagatramkas have had a limited measure of success.
[2]
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Decision last updated: 04 May 2020