Coope v LCM Litigation Fund Pty Ltd (No 2)

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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

  1. 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”.

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

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Details
Case
[2016] NSWCA 174
Decision Date

CaseChat Overview and Summary

The appeal concerned an application by Mr Coope for leave to appeal against a costs order made by Stevenson J in proceedings between Mr Coope and LCM Litigation Fund Pty Ltd. The Court of Appeal of New South Wales, comprising Gleeson, Leeming and Payne JJA, heard the matter.

The primary legal issue before the Court of Appeal was whether the costs order made by the primary judge was affected by an error of principle, specifically in relation to the apportionment of costs between the parties. LCM had sought to rely on a notice of contention, part of which was established, and this formed a basis for their cross-appeal.

The Court of Appeal found that the primary judge had erred in their assessment of costs. They granted leave to cross-appeal and upheld the cross-appeal, concluding that the costs order should be varied. The court determined that Mr Coope should pay 80 per cent of LCM's costs of the proceedings below, with a specific exclusion for a portion of the costs related to expert witness attendance. Mr Coope was also ordered to pay the costs of the cross-appeal.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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