Driver v Botanical Water Technologies Pty Ltd (No 2) - [2024] NSWSC 1641

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Driver v Botanical Water Technologies Pty Ltd (No 2) [2024] NSWSC 1641
Hearing dates: On the papers
Decision date: 20 December 2024
Jurisdiction: Equity - Commercial List
Before: Ball J
Decision:
(1)   The fifth defendant pay the second plaintiff the sum of USD8,518,852.64;
(2)   The fifth defendant pay the fourth plaintiff the sum of USD7,469,896.98;
(3)   The fifth defendant pay 90 percent of the plaintiffs’ costs on the ordinary basis as agreed or assessed;
(4)   There otherwise be no order as to costs of the proceedings.

Catchwords:
COSTS — Party/Party — Bases of quantification — Ordinary basis — Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 — Whether issues subject to costs are clearly dominant or separable — Where claims are separate in a sense, but arise out of same factual matrix — Not appropriate to attempt apportioning of costs between different claims — Plaintiffs awarded 90% of costs to recognise failed or abandoned claims
JUDGMENTS AND ORDERS — Interest — Award of as damages — Where fiduciary relationship — Where appropriate for interest to be calculated from date Court delivered principal judgment

Legislation Cited:
Australian Securities and Investments Commission Act 2001 (Cth)
Corporations Act 2001 (Cth)
Practice Note SC Gen 16

Cases Cited:
BCEG International (Australia) Pty Ltd v Xiao [2022] NSWSC 972
Driver v Botanical Water Technologies Pty Ltd [2024] NSWSC 1409
Hagan v Waterhouse (1991) 34 NSWLR 308
Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298; [2003] NSWCA 10
Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15

Category: Costs
Parties: David Driver (First Plaintiff)
Ambrosios Kambouris (Second Plaintiff)
Kambouris Shares Pty Ltd (Third Plaintiff)
DJD Trading Pty Ltd (Fourth Plaintiff)
Botanical Water Technologies Pty Ltd (First Defendant)
Botanical Water Technologies Ltd (Second Defendant)
Botanical Water Technologies IP Ltd (Third Defendant)
MyCo Pty Ltd (Fourth Defendant)
Terry Paule (Fifth Defendant)
Aqua Botanical Beverages (Australia) Pty Ltd (In Liquidation) (Sixth Defendant)
Representation:
Counsel:
DFC Thomas SC with H Atkin (Plaintiffs)
Solicitors:
McCabes Lawyers (Plaintiffs)
Corrs Chambers Westgarth (Third to Fifth Defendants)

File Number(s): 2021/181606
Publication restriction: None

JUDGMENT

Introduction

I delivered reasons for judgment in this matter on 8 November 2024: see Driver v Botanical Water Technologies Pty Ltd [2024] NSWSC 1409.
Two issues remain to be determined. One is the question of interest. The other is costs. This judgment is concerned with those issues. It assumes familiarity with my earlier judgment and uses the same abbreviations as used in that judgment.

Background

The claims made by the plaintiffs fell into four broad categories.
First, there were those claims relating to the transfer of ABBA’s business to BWT without the agreement of Dr Kambouris and Mr Driver. Those claims included a claim that Mr Paule breached the ABBA Implementation Deed and that he breached an agreement reached between him and Mr Driver in Ballina. They also included a claim under ss 232 and 233 of the Corporations Act 2001 (Cth) (

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.

Keep reading for free

Create a free CaseChat account to read Driver v Botanical Water Technologies Pty Ltd (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWSC 1641
Decision Date: 20 December 2024

CaseChat Overview and Summary

In the case of Driver v Botanical Water Technologies Pty Ltd (No 2), the plaintiffs, Driver, sought damages and relief against the defendant, Botanical Water Technologies Pty Ltd, for breaches of contract, breaches of fiduciary duty, and statutory breaches. The matter was heard in the Supreme Court of New South Wales. The plaintiffs claimed that the defendant had failed to honour contractual obligations, had breached fiduciary duties owed to them, and had contravened certain statutory provisions. The defendant contested these claims, asserting that the plaintiffs had no grounds for relief.

The legal issues the court needed to address included the appropriate basis for quantifying the costs incurred by the plaintiffs, the allocation of costs between different claims, and the calculation of interest as part of the damages awarded. Specifically, the court had to consider whether the claims were sufficiently distinct to warrant separate cost allocations or if they were closely intertwined, as well as the appropriate time from which interest should be calculated. The court also had to determine the percentage of costs that should be awarded to the plaintiffs, given that some claims were unsuccessful.

The court held that the claims, while separate in some respects, arose from the same factual matrix, and thus it was not appropriate to apportion costs between them. The court recognised that some claims had been abandoned or were unsuccessful and awarded the plaintiffs 90% of their costs to reflect this. Regarding the calculation of interest, the court determined that as the relationship between the parties was fiduciary in nature, interest should be calculated from the date the Court delivered its principal judgment. This decision recognised the unique circumstances of the case and the need for equitable treatment in the allocation of costs and interest.

Orders