Coope v LCM Litigation Fund Pty Ltd (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Coope v LCM Litigation Fund Pty Ltd (No 2) [2016] NSWCA 174

Hearing dates:

On the papers

Decision date:

25 July 2016

Before:

Gleeson JA; Leeming JA; Payne JA.

Decision:

(1) Leave to cross-appeal granted.

 

(2) Cross-appeal upheld.

 

(3) Set aside order 6 made by Stevenson J on 7 August 2015 and in lieu thereof order that Mr Coope pay 80 per cent of LCM’s costs of the proceedings below, such costs not to include the $12,085 paid by the LCM in respect of Mr Craddock’s attendance to give evidence.

 (4) Mr Coope pay the costs of the cross-appeal as agreed or assessed.

Catchwords:

COSTS ‑ appeal dismissed – respondent established part of its notice of contention – leave to cross-appeal on costs order below

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 98
Corporations Act 2001 (Cth) s 200B
Uniform Civil Procedure Rules 2005 (NSW) r 36.16

Cases Cited:

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37
LCM Litigation Fund Pty Ltd v Coope; Coope v LCM Litigation Fund Pty Ltd (No 4) [2015] NSWSC 1158

Category:

Costs

Parties:

Patrick Mark Coope (Appellant / Cross-Respondent) 
LCM Litigation Fund Pty Ltd (Respondent / Cross-Appellant)

Representation:

Counsel: 
J Clarke SC / Y Shariff (Appellant) 
A Sullivan QC / S Fendekian (Respondent) 

   Solicitors: 
Esplins Solicitors (Appellant) 
Piper Alderman (Respondent)

File Number(s):

2015/257383

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2015] NSWSC 1158

Date of Decision:

7 August 2015

Before:

Stevenson J

File Number(s):

SC 2015/60819

Judgment

1. THE COURT: On 8 June 2016, the Court made orders dismissing an appeal by Mr Coope, with costs: Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37.

2. The Court also made orders permitting the parties to make additional written submissions about a summons seeking leave to cross-appeal. The issue raised by that summons was the appropriate order for the costs of the proceedings below.

3. On 15 June 2016, LCM Litigation Fund Pty Ltd (“LCM”), the proposed cross-appellant, filed written submissions in accordance with the Court’s order. On 22 June 2016, Mr Coope filed submissions, and on 24 June 2016 LCM filed submissions in reply.

Brief facts

4. To understand this matter it is necessary to read Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37. For present purposes, it is sufficient to recall that the proceedings arose out of an employment dispute between Mr Coope and LCM. Mr Coope was the former co-managing director of LCM. Mr Coope was summarily dismissed following an allegation that he engaged in serious misconduct by breaching his employment contract and his fiduciary duties in two respects. Those two matters were referred to in the primary judgment as the “Wind Down Proposal” and the “Separation Proposal”.

5. In the proceedings before the primary judge, it was held that Mr Coope had engaged in serious…