Idoport Pty Limited v National Australia Bank Limited and 8 Ors; Idoport Pty Limited and Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited and Ors. [48]
[2001] NSWSC 1031
•14 November 2001
CITATION: Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited and Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited & Ors. [48] [2001] NSWSC 1031 FILE NUMBER(S): SC 50113/98; 50026/99; 3991/00 HEARING DATE(S): 9/11/01 JUDGMENT DATE:
14 November 2001PARTIES :
Idoport Pty Limited (Plaintiff)
Market Holdings Pty Limited (Plaintiff)
National Australia Bank Limited (Defendant)
Donald Robert Argus (Defendant)JUDGMENT OF: Einstein J
COUNSEL : Mr M Dicker (Plaintiffs)
Mr J Gleeson SC (Defendants)SOLICITORS: Withnell Hetherington (Plaintiffs)
Freehills (Defendants)CATCHWORDS: Costs CASES CITED: Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors [2001] NSWSC 648
Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors [2001] NSWSC 744
Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors [2001] NSW SC 1024DECISION: Defendants to pay two thirds of plaintiffs' costs of notices of motion 39 and 40. Defendants to pay the entirety of plaintiffs' costs of notices of motion 41 and 42. Plaintiffs to pay the entirety of defendants' costs of notices of motion 19 and 22.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION – Commercial list
Einstein J
14 November 2001
50113/98 IDOPORT PTY LIMITED & ANOR v NATIONAL AUSTRALIA BANK LIMITED & 8 ORS
50026/99 IDOPORT PTY LIMITED & ANOR v DONALD ROBERT ARGUS
3991/00 IDOPORT PTY LIMITED (“JMG”) v NATIONAL AUSTRALIA BANK
Judgment - Costs of and related to Security for Costs Motions
1 Between July and August 2001 the court heard by notice of motion (and in one case informally), a number of applications relating to aspects of the defendants central application for orders to be made for the provision by the plaintiffs of security for the defendants’ costs.
2 Notices of Motion No’s 39 and 40 filed on 20 July 2001 concerned the conditions to be imposed by the court by way of confidentiality undertakings and otherwise in relation to use of documents sought by the defendants for the purposes of the defendants then pending motions for security for costs in the main proceedings and in the MLC proceedings. The judgment ([2001] NSWSC 648) delivered on 31 July 2001 gives the Court’s reasons for acceding on the basis then argued, to a confidentiality regime proposed by the plaintiffs and opposed by the defendants. To my mind it is plain that the plaintiffs succeeded in substance in relation to the matters the subject of that judgment.
3 Notices of Motion No’s 41 and 42 filed by the defendants on 2 August 2001 sought orders that the judgment and reasons delivered on 31 July 2001 be vacated or that the court reopen consideration of notices of motion 39 and 40. The motions were opposed by the plaintiffs. The judgment ([2001] NSWSC 661] delivered on 7 August 2001 gives the courts reasons for dismissing motions 41 and 42. Here again, to my mind it is plain that the plaintiffs succeeded in relation to the matters the subject of that judgment.
4 An application by the plaintiffs relating to establishing the confidentiality in fact of certain documents was subsequently heard without any formal motion in the period 22 - 27 August 2001. As a procedural matter, this was an application in response to requests for access by the defendants in relation to certain documents produced in answer to several notices to produce and subpoenas issued by the defendants for the purposes of the security for costs applications [see 27 August 2001 judgment paragraphs 2 and 3]. The application was made in the context of a need for the plaintiffs to establish confidentiality in order to avoid the usual orders in relation to access to the documents produced in relation to the notices to produce and subpoenas. The plaintiffs were not successful on the hearing of the applications, in claiming confidentiality over all of the documents which the plaintiffs sought to protect. Ultimately, whilst the court was critical of the quality of the evidence as to confidentiality given by Mr D’Emilio in his 21 August 2001 ‘shorter’ affidavit, the Court accepted the plaintiffs’ submission that the court should review the relevant funding agreements by being shown the documents in question: see paragraph 38 of the 27 August 2001 judgment. Following that review, the Court accepted that a restricted regime should apply to Ms D'Arcy, the defendants internal legal representative, in relation to certain clauses and percentages and figures: see paragraph 39 of the 27 August 2001 judgment.
5 At all material times defendants reserved their rights to seek to have the confidentiality regime lifted following the hearing of the security for costs motions. This in fact occurred on 14 November 2001 - see Idoport Pty Ltd v National Australia Bank Limited ([2001] NSW SC 1024).
6 At the end of the day the situation which obtained was that the plaintiffs succeeded through the hearing of the substantive security for costs applications and until 14 November 2001, in limiting access to crucial matters of balances of the Idoport bank accounts and figures and percentages in the funding agreements and in otherwise having the Court impose a confidentiality regime in terms limiting the defendants’ use of the documents the subject of the claim for the purposes only of the security for costs motions and not generally in the proceedings.
7 To my mind in those circumstances it is appropriate to make an order that the defendants pay two-thirds of the plaintiffs costs of notices of motion 39 and 40 for the reason that at least on certain parameters, the defendants succeeded. However, the defendants are to pay the entirety of the plaintiffs’ costs of Notices of Motion 41 and 42.
8 The substantive applications for security for costs were pursued under cover of the defendants notices of motion Nos. 19 and 22 each filed on 24 July 2001. Notice of motion No. 19 was at all material times regarded as also seeking security for costs in relation to the Argus proceedings. It is clear the applications were strenuously resisted by the plaintiffs, who at no time offered any security. The substantive judgment ([2001] NSWSC 744) delivered on 13 September 2001 gives detailed reasons for the making of the orders which then followed on 24 September 2001.
9 The short position is that the defendants having pursued the security for costs applications with vigour and against plaintiffs who resisted the applications with equal vigour, the defendants were ultimately successful in obtaining orders for very substantial payments by way of security for costs, notwithstanding the undoubted fact that the defendants had sought sums very considerably in excess of those actually ordered.
10 The plaintiffs submit that they were successful in relation to a number of specific matters namely:
· There claim that no security for costs should be ordered against Idoport in the main proceedings in relation to the amendments other than the enhancement amendments - see paragraph 120 of the 13 September 2001 judgment;
· Their claim that with some minor variations, the evidence of Ms Vine Hall was preferred to that of Mr Lovell - see paragraph 151 of the judgment;
· Their claim that where Ms Vine-Hall's evidence was not accepted in its totality, the rates decided by the court were far closer to those of Ms Vine Hall as opposed to those put forward by Mr Lovell - see paragraphs 144 -149 of the judgment; and
· Their claim that there should be a reduction to cope with uncertainties - see paragraph 152 of the judgment and the reduction figure of 15 percent.
11 Whilst there is no doubt but that the plaintiffs were successful in relation to each of the above described matters, the fact remains that the defendants sought and procured very substantial orders for security for costs in the face of clear resistance to the making of any such orders. As the judgment of 13 September 2001 confirmed, the ordinary rule is that costs follow the event in proceedings before the court. Albeit that it is clear that this rule is often departed from in terms of the hearing of interlocutory applications, particularly during a protracted final hearing, there are applications and there are applications. Commonly in these proceedings, the court has taken the overarching approach that costs should be reserved so that the successful party at the end of the day may pursue a claim to receive costs orders in respect of all interlocutory applications. Such a claim would of course have to be decided upon the merits but clearly there must be some real prospect of that form of general approach taken at the end of the day following numerous applications/motions of sundry types, when costs are reserved. In this instance however, I take the view that the security for costs applications stand apart from other more ‘run-of-the-mill’ type notices of motion and applications. In my view the defendants having succeeded, in obtaining security for costs, the appropriate order is that the plaintiffs pay the entirety of the defendants’ costs of notices of motion 19 and 22.
Short minutes of order
12 The parties are to bring in short minutes of order to reflect these reasons.
I certify that paragraphs 1 - 12
are a true copy of the reasons
for judgment herein of the
Hon. Justice Einstein
given on 14 November 2001
___________________
Susan Piggott
Associate
14 November 2001
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