Alborn v Stephens (No 2)

The case of Alborn v Stephens (No 2) involved multiple parties and disputes over damages and procedural compliance in discovery and costs. The primary dispute centred on the assessment of damages due to difficulties in determining the amount of consideration, if any, remaining to be paid by the third defendant to the third plaintiff. Additionally, there was contention over whether the defendants had complied with discovery orders by not filing an affidavit regarding the circumstances of lost documents.

The court had to decide several legal issues, including the appropriate method for assessing damages in light of the available accounting material and information, whether any consideration remained unpaid, and whether the defendants had complied with discovery orders. The court also needed to determine the appropriate costs order given the proceedings and the need for supplementary disclosure by the defendants.

In its reasoning, the court found that the difficulty in assessing damages stemmed from the lack of available accounting material and information. It invited further submissions regarding the assessment of remaining consideration. Regarding the discovery orders, the court concluded that the defendants had failed to comply with the 2007 orders, which required them to file an affidavit if certain documents were not within their possession or control. The court also considered the costs incurred due to the need for supplementary disclosure and made orders accordingly.

The final orders of the court were that the plaintiffs were to pay the defendants’ costs on a standard basis, except for the portion of the trial dedicated to obtaining supplementary disclosure by the defendants. Conversely, the defendants were to pay the plaintiffs’ costs for the time taken to secure that supplementary disclosure. This outcome reflected the court's assessment of the procedural non-compliance and its impact on the trial.