Gooley v Breda Pty Ltd (No. 2) - [2017] NSWSC 1505

Supreme Court

New South Wales

Medium Neutral Citation: Gooley & Ors v Breda Pty Ltd & Ors (No. 2) [2017] NSWSC 1505
Hearing dates: 30 August 2017
Date of orders: 06 November 2017
Decision date: 06 November 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiffs ordered to pay the defendants’ reasonable costs of compliance with the orders for preliminary discovery. Form of orders finalised substantially in accordance with the form of orders proposed by the plaintiffs. Defendants ordered to pay 85% of the plaintiff’s costs of the application for preliminary discovery.

Catchwords:
PRELIMINARY DISCOVERY – costs of compliance – whether the applicant should pay the costs of compliance up front - whether the costs of compliance should be paid only after compliance has taken place.

COSTS – costs follow the event - applicant for preliminary discovery successful on some claims for relief but other claims for relief abandoned or applicant unsuccessful on those claims – what order for costs should be made based upon the degree of success the plaintiffs have achieved.
PRACTICE AND PROCEDURE – dispute about form of orders after contested hearing – parties advance separate sets of contested orders to the Court – which orders better reflect the Court’s reasons in its principal judgment.
Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Airways Corp of New Zealand & Anor v The Present Partners of Pricewaterhouse Coopers Legal & Anor [2002] NSWSC 521
Andrews Advertising Pty Limited v Andrews [2011] NSWSC 244
Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006
Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119
C7 Pty Limited v Foxtel Management Pty Limited [2001] FCA 1864
Cappuccio v Australia and New Zealand Banking Group Limited [1999] FCA 1188
Fexuto Pty Limited v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Foyster v Foyster Holdings Pty Ltd (in liq) [2003] NSWSC 881
Gooley & Ors v Breda Pty Ltd & Ors [2017] NSWSC 817
Hamod v New South Wales [2011] NSWCA 375
Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568
Newcrest Mining Limited v Apache Northwest Pty Limited (No. 2) [2008] FCA 1663
SmithKline Beecham plc v Alphapharm Pty Ltd [2001] FCA 271
Steffen v Australia and New Zealand Banking Group Limited [2009] NSWSC 883
Totalise plc v Motley Fool Ltd [2003] 2 All ER 872
Yes Family Pty Limited v Sphere Healthcare Pty Ltd [2016] NSWSC 917
Texts Cited: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis Butterworths)
Category: Consequential orders (other than Costs)
Parties: First Plaintiff: Brett Raymond Gooley
Second Plaintiff: Finbob Pty Ltd ACN 003 945 480, as trustee for the KB Trust
Third Plaintiff: Janine Ruth Gooley
First Defendant: Breda Pty Ltd ACN 000 399 002
Second Defendant: Decahill Pty Ltd ACN 003 753 713
Third Defendant: Dama Enterprises Pty Ltd ACN 000 604 071
Fourth Defendant: Barton Press Pty Ltd 000…

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: [2017] NSWSC 1505
Decision Date: 06 November 2017

CaseChat Overview and Summary

Gooley v Breda Pty Ltd (No. 2) involved a dispute regarding preliminary discovery and the associated costs of compliance. The applicants sought information from the respondents under the Corporations Act. The applicants argued that the respondents should bear the costs of compliance upfront, while the respondents contended that such costs should be paid only after the compliance had occurred. Additionally, the case considered the appropriate order for costs where the applicants were successful on some claims but not on others.

The primary legal issues before the court were whether the applicants should be required to pay the costs of compliance upfront and the appropriate order for costs considering the degree of success achieved by the applicants. The court had to balance the applicants' right to seek information against the respondents' right to manage their resources prudently. Furthermore, the court needed to determine an appropriate costs order that reflected the applicants' partial success in their claims.

The court determined that the applicants should not be required to pay the costs of compliance upfront, as this would be inappropriate in the circumstances of the case. The court held that such costs should be paid only after compliance had taken place. Regarding the costs order, the court held that the applicants, having achieved partial success, were entitled to costs but not on the basis of costs following the event. Instead, the court assessed the degree of success and ordered that the applicants recover costs based on the proportion of their success. The court also reviewed the parties' proposed orders and selected the set that best reflected the court's reasons in its principal judgment.

The court ordered that the respondents bear the costs of compliance only after compliance had taken place and that the applicants recover costs based on the proportion of their success. The court also approved the set of orders that best reflected its reasons in the principal judgment.

Orders