Deep Investments Pty Ltd v Casey (No 4) - [2018] FCA 1123

FEDERAL COURT OF AUSTRALIA
Deep Investments Pty Ltd v Casey (No 4) [2018] FCA 1123

File number: NSD 2189 of 2016

Judge: GLEESON J

Date of judgment: 2 August 2018

Catchwords: PRACTICE AND PROCEDURE – costs – each party to bear own costs of respondents’ partially successful strike out/summary judgment application where respondents substantially succeeded in strike out application but failed to obtain summary judgment – respondents to pay applicant’s costs of application to set aside defective notices to produce

Legislation:
Federal Court of Australia Act 1976 (Cth) s 43

Federal Court Rules 2011 rr 30.28, 40.04

Cases cited:
Allstate Life Insurance Co and Ors v Australia and New Zealand Banking Group Limited (No 13) [1995] FCA 1459

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Limited) (No 2) [2007] FCA 179

Deep Investments Pty Ltd v Casey (No 2) [2018] FCA 726

Deep Investments Pty Ltd v Casey (No 1) [2017] FCA 1643

Deep Investments Pty Ltd v Casey [2018] FCA 603; (2018) 125 ACSR 564

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2015] HCASL 15

DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251; 51 ACSR 555

Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425

Qantas Airways Ltd v Lustig (No 2) [2015] FCA 782

Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306

Date of hearing: Determined on the papers

Date of last submissions: Applicant: 8 June 2018
Respondents: 8 June 2018

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 31

Counsel for the Applicant: Mr P Dunning QC with Dr W Wild

Solicitor for the Applicant: K2 Law

Counsel for the First, Second and Third Respondents: Mr S Donaldson SC with Mr M Friedgut

Solicitor for the First, Second and Third Respondents: MinterEllison

Counsel for the Fourth Respondent: Mr AC Harding

Solicitor for the Fourth Respondent: K&L Gates

Counsel for the Fifth, Sixth and Seventh Respondents: Mr A McGrath SC with Mr SE Gray

Solicitor for the Fifth, Sixth and Seventh Respondents: Moray & Agnew

ORDERS

NSD 2189 of 2016

BETWEEN:
DEEP INVESTMENTS PTY LTD (ACN 003 339 319)

Applicant

AND:
KEVIN CASEY

First Respondent

PAUL CLARKE

Second Respondent

CBC PARTNERS PTY LTD (ACN 104 815 483) (and others named in the Schedule)

Third Respondent

JUDGE:

GLEESON J

DATE OF ORDER:

2 AUGUST 2018

THE COURT ORDERS THAT:
1.Each party bear its own costs of the interlocutory applications filed 2 March 2017.
2.The first to third respondents pay the applicant’s costs of the application filed 26 April 2017 to set aside a notice to produce issued by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCA 1123
Decision Date: 2 August 2018

CaseChat Overview and Summary

Deep Investments Pty Ltd (the applicant) filed an application for costs against Casey and others (the respondents). The applicant sought to recover the costs of various interlocutory applications, including a strike-out and summary judgment application filed by the respondents on 2 March 2017 and a subsequent application by the applicant to set aside defective notices to produce. The respondents partially succeeded in their strike-out and summary judgment application but failed to obtain summary judgment. The court was required to determine whether each party should bear their own costs of the interlocutory applications and whether the respondents should pay the applicant’s costs of the application to set aside defective notices to produce.

The court held that the respondents were substantially successful in their strike-out application, but the applicant succeeded in setting aside the defective notices to produce. The court found that the respondents’ costs should not be entirely disregarded and that each party should bear their own costs of the interlocutory applications filed on 2 March 2017. However, the court ordered the respondents to pay the applicant’s costs of the application filed on 26 April 2017 to set aside the defective notices to produce. The court reasoned that the respondents' failure to serve valid notices to produce constituted a significant breach of procedure and warranted the applicant’s recovery of costs.

The court made orders for each party to bear their own costs of the interlocutory applications filed on 2 March 2017. Additionally, the court ordered the first to third respondents to pay the applicant’s costs of the application filed on 26 April 2017 to set aside a notice to produce issued by them. The fourth respondent was ordered to pay the applicant’s costs of a similar application related to a notice to produce issued by him. Finally, the fifth to seventh respondents were ordered to pay the applicant’s costs of the application filed on 26 April 2017 to set aside a notice to produce issued by them. The orders reflect the court's determination of the respective entitlements to costs for the interlocutory applications and the consequences of the respondents’ procedural breaches.

Orders

Orders of the court

1. Each party bear its own costs of the interlocutory applications filed 2 March 2017.

2. The first to third respondents pay the applicant’s costs of the application filed 26 April 2017 to set aside a notice to produce issued by them to the applicant.

3. The fourth respondent pay the applicant’s costs of the application filed 26 April 2017 to set aside a notice to produce issued by him to the applicant.

4. The fifth to seventh respondents pay the applicant’s costs of the application filed 26 April 2017 to set aside a notice to produce issued by them to the applicant.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 2189 of 2016
Judge:	GLEESON J
Date of judgment:	2 August 2018
Catchwords:	PRACTICE AND PROCEDURE – costs – each party to bear own costs of respondents’ partially successful strike out/summary judgment application where respondents substantially succeeded in strike out application but failed to obtain summary judgment – respondents to pay applicant’s costs of application to set aside defective notices to produce
Legislation:	Federal Court of Australia Act 1976 (Cth) s 43 Federal Court Rules 2011 rr 30.28, 40.04
Cases cited:	Allstate Life Insurance Co and Ors v Australia and New Zealand Banking Group Limited (No 13) [1995] FCA 1459 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Limited) (No 2) [2007] FCA 179 Deep Investments Pty Ltd v Casey (No 2) [2018] FCA 726 Deep Investments Pty Ltd v Casey (No 1) [2017] FCA 1643 Deep Investments Pty Ltd v Casey [2018] FCA 603; (2018) 125 ACSR 564 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2015] HCASL 15 DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251; 51 ACSR 555 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 5) [2018] FCA 19 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425 Qantas Airways Ltd v Lustig (No 2) [2015] FCA 782 Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306
Date of hearing:	Determined on the papers
Date of last submissions:	Applicant: 8 June 2018 Respondents: 8 June 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Category:	Catchwords
Number of paragraphs:	31
Counsel for the Applicant:	Mr P Dunning QC with Dr W Wild
Solicitor for the Applicant:	K2 Law
Counsel for the First, Second and Third Respondents:	Mr S Donaldson SC with Mr M Friedgut
Solicitor for the First, Second and Third Respondents:	MinterEllison
Counsel for the Fourth Respondent:	Mr AC Harding
Solicitor for the Fourth Respondent:	K&L Gates
Counsel for the Fifth, Sixth and Seventh Respondents:	Mr A McGrath SC with Mr SE Gray
Solicitor for the Fifth, Sixth and Seventh Respondents:	Moray & Agnew