ICAP Australia Pty Ltd v Howell; GFI Australia Pty Ltd v Cotton (No 2)

[2019] NSWSC 1061

Supreme Court

New South Wales

Medium Neutral Citation:

ICAP Australia Pty Ltd v Howell; GFI Australia Pty Ltd v Cotton (No 2) [2019] NSWSC 1061

Hearing dates:

On the papers; submissions received 15 and 16 August 2019

Decision date:

19 August 2019

Jurisdiction:

Equity - Commercial List

Before:

Stevenson J

Decision:

No order as to costs

Catchwords:

COSTS – where plaintiff successful on motion – where little of substance achieved

Cases Cited:

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 205 CLR 303; [2013] HCA 46
ICAP Australia Pty Ltd v Howell; GFI Australia Pty Ltd v Cotton [2019] NSWSC 1024
Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188

Category:

Costs

Parties:

In 2018/148259:
ICAP Australia Pty Ltd (First Plaintiff)
ICAP Brokers Pty Ltd (Second Plaintiff)
Bradley Howell (First Defendant)
John Kalaf (Second Defendant)
GFI Australia Pty Ltd (Third Defendant)

  In 2019/30257:
GFI Australia Pty Ltd (Plaintiff/First Cross-Defendant)
Matthew Cotton (First Defendant/Cross-Claimant)
Angus McGilvray (Second Defendant/Cross-Claimant)
Mark Pisani (Third Defendant/Cross-Claimant)
Oliver Gilbert (Fourth Defendant/Cross-Claimant)
Oliver Temperton (Fifth Defendant/Cross-Claimant)
Matthew Ferris (Sixth Defendant/Cross-Claimant)
ICAP Australia Pty Ltd (Seventh Defendant)
Bradley Howell (Second Cross-Defendant)
John Kalaf (Third Cross-Defendant)

Representation:

Counsel in 2018/148259:
A Coleman SC with P Gaffney (Plaintiffs)
R Foreman with K Boyd (Third Defendant)

 

Counsel in 2019/30257:
R Foreman with K Boyd (Plaintiff/First Cross-Defendant)
A Coleman SC with P Gaffney (Seventh Defendant)

 

Solicitors in 2018/148259:
Freehills (Plaintiffs)
J Simpson, KPMG (First Defendant)
Chris Barton Employment Law (Second Defendant)
King & Wood Mallesons (Third Defendant)

  Solicitors in 2019/30257:
King & Wood Mallesons (Plaintiff/First Cross-Defendant)
Horton Rhodes (First to Sixth Defendants/Cross-Claimants)
Freehills (Seventh Defendant)
J Simpson, KPMG (Second Cross-Defendant)
Chris Barton Employment Law (Third Cross-Defendant)

File Number(s):

SC 2018/148259; SC 2019/30257

Judgment

1. On 13 August 2019 I acceded to ICAP’s application to set aside a Notice to Produce served on it by GFI: ICAP Australia Pty Ltd v Howell; GFI Australia Pty Ltd v Cotton [2019] NSWSC 1024.

2. Notwithstanding ICAP’s success on the application, I expressed concern about the need for ICAP to bring the application, especially in light of the President’s recent exhortation to the legal profession to “eschew arid and obstructive debates” see Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188 at [18]-[20] (Bell P, Leeming JA and Emmett AJA agreeing).

3. I expressed a preliminary view that, notwithstanding its success, ICAP should pay the costs of its application.

4. I invited submissions in relation to that question. Those submissions are now to hand.

5. Of course, as ICAP pointed out, costs ordinarily follow the event.

6. My attention has been drawn to correspondence passing between the parties in which the possible ambiguity of the first category of documents sought in the Notice to Produce was identified, namely that this sought not merely documents effecting the extension of the Initial Period of Service but documents “setting out the terms” on which that extension was made.

7. That correspondence also foreshadowed the basis on which I ultimately set aside the Notice to Produce.

8. Nonetheless, I remain of the view that ICAP’s response to the Notice to Produce was, although technically consistent with authority, nonetheless an example of the type of “[u]nduly technical and costly disputes about non-essential issues” that, admittedly in a different context, the High Court has deprecated: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 205 CLR 303; [2013] HCA 46 at [57].

9. On reflection, my conclusion is that I ought not order ICAP pay the costs of the application. It has, after all, been successful.

10. The Court’s disapproval of the course adopted by ICAP will be sufficiently marked by making no order as to the costs of its application to set aside the Notice to Produce.

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Decision last updated: 19 August 2019