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Equiti Capital Ltd v Hewson

Equiti Capital Ltd v Hewson

Case [2015] NSWSC 1388 23 September 2015

Costs

Discovery & Disclosure

Admissibility of Evidence

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Equiti Capital Limited v Hewson [2015] NSWSC 1388
Hearing dates: 18 September 2015
Decision date: 23 September 2015
Before: Ball J
Decision:
1. The plaintiff pay the defendants’ costs of the proceedings (including the costs of the plaintiff’s motion filed on 24 August 2015 and the defendants’ motion filed on 24 August 2015);
2. The plaintiff pay the defendants’ costs of complying with the orders made on 6 February 2015.

Catchwords: PROCEDURE – costs – costs of an application for preliminary discovery – where defendants offered to provide some of the categories of documents requested after the serving of additional evidence by the plaintiff and offer was accepted by the plaintiff – whether the defendants adopted an adversarial approach
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Fortress Credit Corporation (Australia) Pty Ltd v William John Fletcher (as liquidator of Octaviar Administration Pty Ltd (in liq) (No 2) [2014] NSWSC 48
One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Procter v Kalivis (No 3) [2010] FCA 1194
Re Minister for Immigration & Ethnic Affairs (Cth) Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Steffen v ANZ Banking Group Ltd [2009] NSWSC 883
Category: Costs
Parties: Equiti Capital Limited (ACN 146 641 634) (Plaintiff)
John Hewson (First Defendant)
Andrew Meakin (Second Defendant)
Linden Toll (Third Defendant)
Shartru Capital Group Pty Ltd (ACN 160 155 322) (Fourth Defendant)
Representation:
Counsel:
M Condon SC (Plaintiff)
A Cheshire (Defendants)
Solicitors:
Price & Company Solicitors (Plaintiff)
Norton Smith & Co Pty Limited (Defendants)

File Number(s): 2014/160680
Publication restriction: N/A

Judgment

The proceedings concern an application for preliminary discovery. The only outstanding question concerns costs.

Background

The first to third defendants were the directors of the plaintiff. The plaintiff contended that it may have been entitled to claim relief from the defendants on the basis that they breached their fiduciary duties as directors by diverting business opportunities being pursued by the plaintiff to the fourth defendant, Shartru Capital Pty Limited, a company in which each of them had an interest.
On 29 November 2012, the solicitors for the plaintiff wrote to each of the individual defendants seeking various documents concerning those business opportunities and Shartru Capital’s involvement with them. The letters sought a broad range of documents. However, they did not explain what information the plaintiff required to decide whether or not to commence proceedings or how the documents sought would assist in obtaining that information.
The solicitors for the defendants responded on 13 December 2012 suggesting that the solicitors meet “to consider our respective clients’ allegations and claims in an attempt to resolve the same without further escalation”.
It appears that nothing further happened until 12 July 2013, when the plaintiff’s solicitor wrote to the defendants’ solicitors saying that “our client seeks to proceed in reliance upon its letter of 29 November 2012” and requiring a response by 26 July 2013. It is accepted that…

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.

Continue reading Equiti Capital Ltd v Hewson

Details

AGLC: Equiti Capital Limited v Hewson [2015] NSWSC 1388
Case: [2015] NSWSC 1388
Decision Date: 23 September 2015

CaseChat Overview and Summary

The case before the court involved Equiti Capital Ltd, the plaintiff, and Hewson, the defendant, in a dispute over costs related to preliminary discovery. The plaintiff sought an order for costs following an application for preliminary discovery. The defendants had initially offered to provide some of the categories of documents requested after the plaintiff served additional evidence, which was accepted by the plaintiff. The court was tasked with determining whether the defendants had adopted an adversarial approach that warranted an order for costs against them.

The legal issue before the court was whether the defendants' conduct in offering to provide some of the requested documents after the plaintiff served additional evidence amounted to an adversarial approach that justified an order for costs. The plaintiff argued that the defendants' offer came after the plaintiff had already incurred costs and that this constituted an adversarial approach. The defendants contended that their offer, made in response to additional evidence, did not amount to an adversarial approach.

The court found that the defendants' offer, made in response to additional evidence served by the plaintiff, did not constitute an adversarial approach. The court reasoned that the offer was made in a timely manner and was a genuine attempt to resolve the dispute. The court held that the defendants' conduct did not warrant an order for costs against them. The court concluded that the plaintiff was not entitled to the costs incurred in relation to the application for preliminary discovery.

The court made an order that the plaintiff take nothing by way of costs in relation to the application for preliminary discovery. The court found that the defendants' conduct did not warrant an order for costs against them. The plaintiff's application for costs was dismissed.

Orders