In the matter of Moula Money Pty Limited (No 2)

[2023] NSWSC 1649

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Moula Money Pty Limited (No 2) [2023] NSWSC 1649

Hearing dates:

On the papers

Date of orders:

22 December 2023

Decision date:

22 December 2023

Jurisdiction:

Equity - Corporations List

Before:

Williams J

Decision:

Defendants to pay plaintiff’s costs of the proceedings on the ordinary basis.

Catchwords:

COSTS — No question of principle

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Liu v The Age Company Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115

Oikos Constructions Pty Ltd v Ostin (No 2) (2021) 37 BCL 424; [2021] NSWCA 98

Texts Cited:

N/A

Category:

Costs

Parties:

Enares Pty Ltd (ACN 001 060 359) (Plaintiff)
Moula Money Pty Limited (ACN 164 875 325) (First Defendant)
Beat Services Pty Ltd (ACN 121 451 803) (Second Defendant)

Representation:

Counsel:
Ms LRP Rich (Plaintiff)
Mr JC Hewitt SC (First Defendant)
Mr MI Borsky KC with Mr K Raghavan (Second Defendant)

Solicitors:
Baker McKenzie (Plaintiff)
MinterEllison (First Defendant)
Arnold Bloch Leibler (Second Defendant)

File Number(s):

2022/334868

Publication restriction:

N/A

Judgment

1. These reasons for judgment concern the costs of the plaintiff’s application for preliminary discovery.

2. The plaintiff sought orders for preliminary discovery of nine categories of documents against the first defendant and three categories of documents against the second defendant. The application was determined on 24 November 2023. I published my reasons for judgment on that date. [1] The plaintiff succeeded in relation to three of the nine categories of documents sought against the first defendant, and in relation to one of the three categories of documents sought against the second defendant.

   1. In the matter of Moula Money Pty Ltd [2023] NSWSC 1434.

3. I have considered all of the parties’ written submissions in relation to costs.

4. The plaintiff submits that its application was successful, and that costs should follow the event. Each of the two defendants submit that they enjoyed a substantial measure of success, and that the plaintiff should be ordered to pay one third of each defendant’s costs.

5. As recorded in the principal judgment, the application was an usual one because the plaintiff was already in possession of extensive information that had enabled it to formulate the three categories of claims that it may be entitled to bring against the defendants in significant detail. The plaintiff contended that it nevertheless required further information in order to decide whether to commence proceedings.

6. The defendants strenuously opposed the application. Both defendants accepted that the plaintiff may be entitled to make one of the categories of claims. Up until the day of the hearing, both defendants disputed that the plaintiff may be entitled to make the second and third categories of claim. Much attention was devoted to that issue in the parties’ written submissions exchanged prior to hearing, and in the plaintiff’s oral submissions on the day of the hearing. It was not until the commencement of the first defendant’s oral submissions that it accepted that the plaintiff may be entitled to make the second and third categories of claim. The second defendant maintained its opposition to the plaintiff’s contention that it may be entitled to make the second and third categories of claim. Both defendants opposed any order for preliminary discovery.

7. Contrary to the second defendant’s submissions in relation to costs, the plaintiff cannot fairly be criticised for having adduced evidence of the documents already in its possession, and of the inquiries already made, in support of its claim in these proceedings that it reasonably required the additional nine categories of documents from the first defendant and three categories of documents from the second defendant by way of preliminary discovery, in order to make a decision whether to commence proceedings in relation of some or all of the three categories of claims. Indeed, it would have been necessary for the plaintiff to adduce that evidence, even if it had sought preliminary discovery in respect of fewer categories of documents.

8. Submissions in relation to the categories of documents in respect of which the plaintiff succeeded occupied far more time at the hearing than the categories in respect of which the plaintiff failed. This was also reflected in the parties’ written submissions served prior to hearings.

9. As the plaintiff submitted, the Court approaches the question of the costs of a preliminary discovery application recognising the exceptional nature of the jurisdiction, but applying s 98 of the Civil Procedure Act 2005 (NSW) and r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) so that costs follow the event, unless it appears to the Court that some other order should be made in relation to the whole or part of the costs in all the circumstances of the particular case. [2]

   2. Liu v The Age Company Ltd; (2016) 92 NSWLR 679; [2016] NSWCA 115 at [269]-[275].

10. The event in the present case is that the plaintiff has succeeded in obtaining orders for preliminary discovery over the opposition of the defendants, although the scope of the discovery ordered was less extensive than that sought by the plaintiff. Contrary to the first defendant’s submissions, I do not consider that this case lends itself to apportioning costs between the outcome in relation to different categories of documents, even on a “broad brush” basis. In circumstances where the contested issues on which the plaintiff succeeded appear to me to have accounted for the substantial part of the work undertaken by the parties prior to the hearing, and to have occupied the most attention on the day of the hearing, as I have explained above, [3] I do not consider that an issues-based costs order would produce a fairer result than an order that the defendants pay the plaintiff’s costs of the proceedings. [4] I reject the submissions of the first and second defendants to the contrary.

    3. See above at [5]–[8].

    4. Oikos Constructions Pty Ltd v Ostin (No 2) (2021) 37 BCL 424; [2021] NSWCA 98 at [11]–[16] and the authorities there referred to.

11. The orders of the Court are:

1. The defendants are to pay the plaintiff’s costs of the proceedings on the ordinary basis, as agreed or assessed.

Endnotes