Galati v Deans (No 2) - [2019] NSWSC 1714

Supreme Court

New South Wales

Medium Neutral Citation: Galati v Deans (No 2) [2019] NSWSC 1714
Hearing dates: On the papers
Date of orders: 04 December 2019
Decision date: 04 December 2019
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order that the costs of and incidental to the motion filed 8 October 2019 by the first and second defendants/cross-claimants be reserved, to be determined as part of the costs orders to be made on the final determination of the substantive dispute between the parties in the proceedings.

Catchwords: COSTS –Party/Party – General rule that costs follow the event – Application of the rule and discretion – costs in relation to an application seeking general access to documents produced in answer to subpoena – whether the cross-claimants in pressing part of the relief sought in the application was so unreasonable as to warrant the payment of costs forthwith – held that the appropriate costs order is that the costs of (and incidental to) the hearing of a motion should be reserved – considered fairer to the parties that the costs be determined on the final determination of the substantive dispute between the parties in the proceedings.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-59, 98
Evidence Act 1995 (NSW), s 126
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 42.7(2)
Cases Cited: Bostik Australia Pty Limited v Liddiard (No 2) [2009] NSWCA 304
Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353
Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261
Galati v Deans (No 3) [2018] NSWSC 1861
Galati v Deans [2018] NSWSC 1600
Galati v Deans [2019] NSWSC 1548
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (No 2) [2019] NSWSC 1492
Neal v Neal [2018] NSWSC 1356
Roache v News Group Newspapers Ltd [1998] E.M.L.R. 161
Category: Costs
Parties: Robert Paton Deans (First Defendant/First Cross-Claimant)
Fishbank Development Corporation Pty Limited (Second Defendant/Second Cross-Claimant)
EJC Pyrmont Pty Ltd (Tenth Cross-Defendant)
Representation:
Counsel:
P Barham (Applicants/Defendants/Cross-claimants)
C Withers (Respondent/Tenth Cross-defendant)
Solicitors:
Johnson Winter & Slattery (Respondent/Tenth Cross-defendant)
FCB Workplace Law (Applicants/Cross-claimants)

File Number(s): 2016/00360462
Publication restriction: Nil

Judgment

HER HONOUR: On 8 November 2019, I published my reasons in relation to an application, by notice of motion filed on 8 October 2019, made by the first and second defendants/cross-claimants, Mr Robert Deans (Deans) and his associated entity, Fishbank Development Corporation Pty Limited (FDC) (collectively, the cross-claimants), for general access in respect of documents produced, in answer to subpoena issued on 28 June 2019, by a firm of lawyers, Norton Rose Fulbright (NRF) (that firm having merged with Henry Davis York, the solicitors acting on behalf of the tenth cross-defendant, EJC Pyrmont Pty Limited (EJC) in respect of the transactions the subject of dispute in the present proceedings) (see Galati v Deans [2019] NSWSC 1548 – the November 2019 judgment).
The application…

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 Galati v Deans (No 2)

Details

AGLC: Galati v Deans (No 2) [2019] NSWSC 1714
Case: [2019] NSWSC 1714
Decision Date: 04 December 2019

CaseChat Overview and Summary

Galati v Deans (No 2) involved a dispute regarding the costs associated with an application for access to documents under a subpoena. The case was heard in the Federal Court of Australia, where the cross-claimants sought an order for the general access to documents produced in response to a subpoena issued by the plaintiffs. The cross-claimants argued that the application was unreasonable and sought a costs order to be paid forthwith.

The legal issues before the court included whether the cross-claimants' decision to press part of the relief sought in the application was so unreasonable as to warrant the immediate payment of costs. The court was required to balance the general rule that costs follow the event with its discretion to order costs in exceptional circumstances. The court also considered whether it was appropriate to reserve the costs of the motion until the final determination of the substantive dispute between the parties.

In deciding the case, the court held that the appropriate costs order was to reserve the costs of (and incidental to) the hearing of the motion. The court reasoned that it would be fairer to the parties to determine the costs on the final determination of the substantive dispute between them. The court found that the cross-claimants' decision to press part of the relief sought in the application was not so unreasonable as to warrant the payment of costs forthwith. The court concluded that reserving the costs until the final determination of the substantive dispute would ensure a more equitable outcome for all parties involved.

No final orders were made in the case, as the costs issue was reserved for determination on the final determination of the substantive dispute between the parties.

Orders