Birketu Pty Ltd v Westpac Banking Corporation (No 2)
[2018] NSWSC 1125
•19 July 2018
Supreme Court
New South Wales
Medium Neutral Citation: Birketu Pty Ltd v Westpac Banking Corporation (No 2) [2018] NSWSC 1125 Hearing dates: On the papers Date of orders: 19 July 2018 Decision date: 19 July 2018 Before: McDougall J Decision: Costs orders made as 9th and 10th defendants seek. See at [17].
Catchwords: COSTS – proceedings transferred to Commercial List – ninth and tenth defendants raised objections to draft list statement – recoverability of the costs of those objections and appearance in court – no question of principle. Cases Cited: Birketu v Westpac Banking Corporation [2018] NSWSC 879 Category: Costs Parties: Birketu Pty Ltd (First Plaintiff)
WIN Corporation Pty Ltd (Second Plaintiff)
Westpac Banking Corporation (First Defendant)
Sportsbet Pty Ltd (Second Defendant)
Tabcorp Holdings Ltd (Third Defendant)
Betfair Pty Ltd (Fourth Defendant)
Brody Jack Clarke (Fifth Defendant)
Tab Ltd (Sixth Defendant)
Tabcorp Wagering (Vic) Pty Ltd (Seventh Defendant)
Tabcorp ACT Pty Ltd (Eighth Defendant)
John Ljubomir Atanaskovic (Ninth Defendant)
Anthony Geoffrey Hartnell (Tenth Defendant)Representation: Counsel:
Solicitors:
M Ashhurst SC / S Keizer (Plaintiffs)
P A Horvath (Ninth and Tenth Defendants)
HWL Ebsworth Lawyers (Plaintiffs)
Gilchrist Connell (Ninth and Tenth Defendants)
File Number(s): 2017/294767
Judgment
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HIS HONOUR: The background facts have been set out in my judgment given on 8 June 2018[1] and I shall not repeat them. In these reasons, I deal with the costs of the plaintiffs’ notice of motion filed on 13 April 2018. By that notice of motion, the plaintiffs sought to transfer the proceedings into the Commercial List, to join the now ninth and tenth defendants (AH), and to file an appropriate Commercial List Statement.
1. Birketu v Westpac Banking Corporation [2018] NSWSC 879.
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The motion was returnable on 20 April 2018. Hammerschlag J transferred the proceedings into the Commercial List (over the objection of AH, even though they were not then parties). His Honour stood the notice of motion over for a week, because AH had indicated various objections to the draft Commercial List Statement that had been given to them. The directions hearing of 27 April 2018 can be put to one side, because on that day the matter was adjourned by consent to 4 May 2018.
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Between 23 April and 4 May 2018, and in accordance with directions given by Hammerschlag J on 20 April 2018, the parties communicated through their legal representatives. AH outlined their objections to the draft list statement. The plaintiffs redrafted the list statement in an attempt to meet AH’s concerns. AH was not satisfied with the redraft. A further redraft was provided. AH was not satisfied with that.
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The plaintiffs asked AH to give some detail of the precise issues, including by reference to paragraph numbers in the latest version of the draft list statement. AH declined to do so. Thereafter, the matter came to back to court and was referred to me.
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When the matter was before me on 4 May 2018, Counsel for AH gave some (considerable) detail of her client’s concerns about and objections to the latest draft of the list statement. Counsel for the plaintiffs responded. They were able to do so because the complaints, although they had been foreshadowed, were expounded both more precisely and with greater particularity than had been done in the underlying correspondence.
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At the conclusion of submissions on 4 May 2018, I stood the matter over to 1 June 2018 to enable the parties to continue the process of redrafting. It is fair to say that although I gave no reasons (because I had made no order for which reasons ordinarily should be given), I had expressed a measure of agreement with some of AH’s concerns. The plaintiffs took that opportunity. There were no further complaints from AH. The list statement was filed, in the form of the last redrafted version, on 1 June 2018.
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The parties are agreed that the costs orders to be made should include:
an order that the plaintiffs pay AH’s costs of reviewing the versions of the draft Commercial List Statement served on 13, 26 and 27 April 2018; and
that the costs of the motion otherwise be costs in the cause.
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The remaining difference between the parties (as to costs) is whether the plaintiffs should pay AH’s costs of and pertaining to the appearance on 4 May 2018.
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The plaintiffs submit that there was no motion before the court on that day. They submit that the only “application” that was made was an oral application by AH, who were still not formally joined as defendants at that time, objecting to the latest draft of the list statement. The plaintiffs submit, further, that the complaints articulated on 4 May 2018 went beyond those articulated in the prior correspondence.
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AH submit that the appearance was necessary, because their complaints had not been resolved at that time. They submit that their existing complaints were re-articulated at the hearing, and that in substance they were accepted by the plaintiffs, because the final draft of the list statement that was produced, after that hearing, was filed without objection.
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I do not agree that there was no formal process before the court on 4 May 2018. The plaintiffs’ notice of motion filed on 13 April 2018 had not been fully dealt with. There remained outstanding the question of leave to file a Commercial List Statement, involving as it did not only the form or content of that document but also the joinder of AH. Those matters were before the court on 4 May 2018. In my view, even though the motion might not have been formally adjourned for hearing (or further hearing) on 4 May 2018, it was, nonetheless, the occasion for the hearing on that day.
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What occurred on 4 May 2018 related entirely to an aspect of the relief sought by the notice of motion: an aspect that had not been resolved by the orders made on 20 April 2018. AH were substantially successful, in that their objections appear to have resonated with the plaintiffs, because the plaintiffs thereafter revised, yet again, their draft list statement so as to accommodate those objections.
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The plaintiffs submit that all of this could have been dealt with by further correspondence. That may be so, although there must be a question as to the efficacy of any further prolongation of the correspondence. But even if the dispute had proceeded in that way, the costs of that further correspondence would have been caught by the orders to the effect of those that are agreed to be made.
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In substance, the hearing on 4 May 2018 provided a forum for the oral articulation of the competing contentions that had been advanced in correspondence. As is often the case, the articulation of those arguments in competing oral submissions helped to clarify the issues, and, thereafter, led to their resolution without the need for a further court hearing. It does not seem to me to matter that (to the extent they did) AH’s complaints went beyond those raised in the prior correspondence. Had any fresh complaints been raised in the further correspondence that the plaintiffs say should have ensued, what I have said at [13] would apply.
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In short, I see no sensible or functional distinction between the agreed order that AH should have their costs of reviewing the various drafts and the remaining order that is in dispute. The subject matter and substance were identical: namely, the repeated attempts of the plaintiffs to articulate their causes of action in a list statement that met AH’s complaints.
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In the circumstances, I think, AH should have their costs of the hearing on 4 May 2018.
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I make the following orders:
order the plaintiffs to pay the costs of the ninth and tenth defendants of and pertaining to the appearance on 4 May 2018, including their costs of reviewing the versions of the draft commercial list statement served on 13, 26 and 27 April 2018.
Order that otherwise the costs of the plaintiffs’ notice of motion filed on 13 April 2018 be costs in the cause.
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Endnote
Decision last updated: 19 July 2018
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