DXC Connect Pty Ltd v Deibe

Case [2017] NSWSC 1356


Supreme Court


New South Wales

Medium Neutral Citation: DXC Connect Pty Ltd v Deibe & Ors [2017] NSWSC 1356
Hearing dates:22, 23 and 25 August 2017, costs submissions 7 September 2017
Decision date: 05 October 2017
Jurisdiction:Equity
Before: Black J
Decision:

The Court orders that sixty per cent of the Plaintiff’s costs of and incidental to the application heard on 22–23 and 25 August 2017, excluding costs referable to the preparation of affidavits to the extent they are relied on in the final hearing, as agreed or as assessed, be the Plaintiff’s costs in the cause, and that there be no order as to the costs of the application for costs.

Catchwords:

COSTS — Party/Party — Costs orders in interlocutory proceedings — where interlocutory relief would reduce ultimate loss to Plaintiff – whether Plaintiff’s costs should be its costs in the cause – reduction to costs order where Plaintiff partly unsuccessful

  COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – whether unreasonable for Plaintiff not to accept Sixth Defendant’s Calderbank offer
Legislation Cited: - Civil Procedure Act 2005 (NSW), s 98
- Uniform Civil Procedure Rules 2005 (NSW), Pt 42, rr 42.1, 42.7
Cases Cited: - Ausino International Pty Ltd v Apex Sports Pty Ltd [2006] NSWSC 1119
- Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
- Calderbank v Calderbank [1975] 3 All ER 333
- Commonwealth of Australia v Gretton [2008] NSWCA 117
- Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
- DXC Connect Pty Ltd v Deibe [2017] NSWSC 1159
- Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
- John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995
- Kraissa v Hair Industrie Penrith Pty Ltd [2015] NSWSC 1905
- Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816
- Petar v Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142
- Re MF Global Australia Ltd (in liq); Hopper v Campbell in his capacity as liquidator of MF Global Australia Ltd (in liq) [2015] NSWSC 1583
Category:Costs
Parties: DXC Connect Pty Ltd (Plaintiff)
Stephen Deibe (First Defendant)
Antonino Arena (Second Defendant)
Rohan Michael Busteed (Third Defendant)
Jay Manaen Henry (Fourth Defendant)
David Troy Hunter (Fifth Defendant)
Robert McCabe (Sixth Defendant)
Joseph Arcuri (Seventh Defendant)
Representation:

Counsel:
J J Fernon SC/S B Docker (Plaintiff)
R Alkadamani (Sixth Defendant)

  Solicitors:
Lander & Rogers Lawyers (Plaintiff)
Haywards Solicitors (Sixth Defendant)
File Number(s):2017/226378

Judgment

  1. After a three day hearing on 22, 23 and 25 August 2017, I delivered judgment on 31 August 2017 ([2017] NSWSC 1159) (“Judgment”) holding that an interlocutory injunction should be granted restraining the Sixth Defendant, Mr Robert McCabe, from disclosing or using specified information of the Plaintiff, DXC Connect Pty Ltd (“DXC”) until further order and that an order should also be made broadly reflecting the restraint…

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DXC Connect Pty Ltd v Deibe [2017] NSWSC 1356
Case
[2017] NSWSC 1356
Decision Date

CaseChat Overview and Summary

In DXC Connect Pty Ltd v Deibe, the Federal Court addressed a dispute involving multiple parties, including DXC Connect, the Plaintiff, and various Defendants. The Plaintiff sought damages for breach of contract and other related claims. The central issue before the Court was the appropriate allocation of costs in the context of interlocutory proceedings, particularly considering the potential for reducing the Plaintiff’s ultimate loss. The Court also needed to determine if it was unreasonable for the Plaintiff to reject a Calderbank offer made by one of the Defendants.

The Court found that while interlocutory relief might reduce the Plaintiff's ultimate loss, the principle that costs follow the event should not be lightly departed from. The Plaintiff’s costs in the cause were appropriate given the potential for significant reduction in damages. However, the Court observed that the Plaintiff had been partly unsuccessful in its proceedings, which warranted a reduction in the costs order. The Court further examined the reasonableness of the Plaintiff's refusal to accept a Calderbank offer from the Sixth Defendant, concluding that it was not unreasonable for the Plaintiff to reject the offer given the circumstances.

Ultimately, the Court made an order for costs in favour of the Plaintiff but reduced the amount due to the partial success in the proceedings. The Court also ruled that the Plaintiff was not unreasonable in rejecting the Calderbank offer, considering the strategic implications of the litigation at that stage.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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