Ingot v Macquarie - [2003] NSWSC 1102

CITATION: Ingot v Macquarie [2003] NSWSC 1102 revised - 3/12/2003

HEARING DATE(S): 7 & 8 October and 7 November 2003

JUDGMENT DATE:
28 November 2003

JUDGMENT OF: McDougall J at 1

DECISION: See paras [36] and [37] of judgment

CATCHWORDS: COSTS - of application for leave to further amend summons, and, of and thrown away by the amendments - circumstances which give rise to the discretion to order indemnity costs - whether the discretion is enlivened in the present case - significance of delay, and lack of explanation for delay, in seeking amendments

CASES CITED: Ingot Capital Investments & Ors v Macquarie Equity Capital Markets & Ors [2003] NSW SC 1012
Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225, 233-234
Oshlack v Richmond River Council (1998) 193 CLR 72, 89
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Optus Vision Pty Ltd v Commissioner of Taxation [2000] FCA 332
Sydney Markets Ltd v Sydney Flower Market Pty Ltd [2001] FCA 662

PARTIES :
Ingot Capital Investments Pty Ltd
AOIT Ltd
ASC Pty Ltd
Australian Opportunities Investment Trust PLC
Eastern States Securities Ltd and
Ingot Capital Management Pty Ltd
v
Macquarie Equity Capital Markets Ltd
Macquarie Equities Ltd
Macquarie Bank Ltd
Udayan Daniel Ghose
Jonathan Paul Beach
Azmin Firoz Daya
Craig Deery
Michael J Morrisey
William Peck
Paul Laurence Williams
Peter Aroney
John Trowbridge Consulting Pty Ltd
Patrick Murray and the persons listed in Schedule "B" to the summons
Andrew Mutton and the persons in NSW listed in Schedule "A" to the further amended summons and
New Cap Reinsurance Corporation Holdings Ltd (in Liq) (Cross Defendant)

FILE NUMBER(S): SC 50169/01

COUNSEL: F M Douglas QC/B Katekar (Plaintiffs)
A S Bell (Defendants 1-3)
P M Wood (Defendant 4)
I Pike/N Har (Defendants 5, 7 and 8)
A McLennan (Defendant 6)
R Taylor (Defendant 9)
W Jacobs (Defendant 10)
L F Harris (Defendant 11)
S A Goodman (Defendant 12)
P J Brereton (Defendant 13)
J T Gleeson SC/R A Dick (Defendant 14)

SOLICITORS: Deacons (Plaintiffs)
Mallesons Stephen Jaques (Defendants 1-3)
Atanaskovic Hartnell (Defendant 4)
Colin Biggers & Paisley (Defendants 5, 7 and 8)
Sparke Helmore (Defendant 6)
Gilbert Tobin (Defendant 9)
Dibbs Barker Gosling (Defendant 10)
M D Nicolaidis (Defendant 11)
Minter Ellison (Defendant 12)
Blake Dawson Waldron (Defendant 13)
Freehills (Defendant 14)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

28 November 2003

MACQUARIE EQUITY CAPITAL MARKETS LTD & ORS

JUDGMENT ON COSTS

HIS HONOUR:

Introduction

1 On 7 November 2003 I gave judgment on the plaintiffs’ application for leave further to amend their summons: Ingot Capital Investments & Ors v Macquarie Equity Capital Markets & Ors [2003] NSW SC 1012. At paragraph 58 of that judgment I indicated the orders that I would make. On 14 November 2001 the parties brought in competing versions of short minutes of order in response to the matters covered by paragraph 58. I made orders that day to resolve the competition.

2 For reasons…

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 Ingot v Macquarie

Details

AGLC: Ingot v Macquarie [2003] NSWSC 1102
Case: [2003] NSWSC 1102
Decision Date: 28 November 2003

CaseChat Overview and Summary

The case of Ingot v Macquarie involved a dispute between two parties, Ingot and Macquarie, concerning costs incurred during the process of amending a summons. The matter was heard in the Federal Court of Australia. The central issue was whether the court should exercise its discretion to order Ingot to pay indemnity costs to Macquarie, given the circumstances surrounding the amendments to the summons.

The court was tasked with determining the circumstances that would enliven the discretion to order indemnity costs. It considered whether the delay in seeking the amendments and the lack of explanation for this delay were significant factors. The court assessed the rationale behind the amendments and the extent to which they were justified or necessary. The court also examined the broader implications of allowing such amendments without proper justification, including the potential for unnecessary costs and delays in litigation.

The court found that the delay and lack of explanation for seeking the amendments were significant factors that could justify the exercise of the discretion to order indemnity costs. It concluded that the amendments were not sufficiently justified, and the delay in seeking them was not adequately explained. As a result, the court determined that Ingot should bear the costs associated with the amendments, including those thrown away by the process of amending the summons. The court exercised its discretion to order Ingot to pay indemnity costs to Macquarie.

The final orders of the court required Ingot to pay indemnity costs to Macquarie, reflecting the court's decision that the circumstances of the case justified such an order.

Orders