iSAM Securities (UK) Ltd v Press (No 2) - [2024] NSWSC 1209

Supreme Court

New South Wales

Medium Neutral Citation: iSAM Securities (UK) Ltd v Press (No 2) [2024] NSWSC 1209
Hearing dates: 19 September 2024
Date of orders: 25 September 2024
Decision date: 25 September 2024
Jurisdiction: Equity
Before: Richmond J
Decision:
See [15]

Catchwords:
COSTS – No question of principle

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Equiti Capital Ltd v Hewson [2015] NSWSC 1388
iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036
Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd (No 2) [2019] FCA 657
Racing New South Wales v Racing Victoria Ltd (No 3) [2023] NSWSC 838
ReMoula Money Pty Ltd (No 2) [2023] NSWSC 1649
Steffen v Australia and New Zealand Banking Group Ltd [2009] NSWSC 883

Category: Costs
Parties: iSAM Securities (UK) Limited (First Plaintiff)
iSAM Securities (HK) Limited (Second Plaintiff)
iSAM Securities (Global) Limited (Third Plaintiff)
iSAM Securities (USA) Inc (Fourth Plaintiff)
Matthew Press (First Defendant)
Forexco Australia Pty Ltd (Second Defendant)
Representation:
Counsel:
C Bova SC / Z Graus (Plaintiffs)
O Jones / C Beshara (Defendants)
Solicitors:
Corrs Chambers Westgarth (Plaintiffs)
O’Loughlin Westhoff (Defendants)

File Number(s): 2024/00263578
Publication restriction: Nil

JUDGMENT

In my earlier judgment in this matter on 19 August 2024, I made orders for preliminary discovery: iSAM Securities (UK) Ltd v Press [2024] NSWSC 1036 (J). These reasons deal with the outstanding issue of costs.
By their Amended Summons, the plaintiffs sought preliminary discovery pursuant to both r 5.2 and r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) or the inherent jurisdiction of the Court.
The orders sought under r 5.2 were of two kinds: first, an order for the first defendant to attend the Court to be examined on the identity of the person or persons conducting certain activities and second, the preliminary discovery of two categories of documents for the period from 1 July 2021 to date. As to the first, I made an order that the first defendant, Mr Press, provide an affidavit dealing with the relevant matters as a more efficient and cost effective way of providing the information sought: J[53]-[54]. As to the second, I granted discovery of documents within each of the categories sought, but of a less extensive nature in that the documents concerning the plaintiffs’ pricing information were limited to those for products with the prefix ‘IDX’, the focus was on documents revealing the identity of persons conducting the relevant activities or using the plaintiffs pricing information rather than merely those relating thereto and the relevant period was shortened by bringing forward the commencement date to 1 June 2023: J[55]-[56].
The orders for preliminary discovery under r 5.3 sought all the documents within the defendants’ possession created, dated or received in the period from 1 July 2021 to date evidencing, recording or relating to the supply, receipt or use of…

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: [2024] NSWSC 1209
Decision Date: 25 September 2024

CaseChat Overview and Summary

The case involved iSAM Securities (UK) Ltd as the plaintiff and Press as the defendant. The dispute centred on a claim for damages and other remedies in relation to an alleged breach of contract. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the plaintiff was entitled to recover costs associated with the unsuccessful appeal of a previous decision, where the plaintiff had been awarded costs in the original proceedings. The court had to determine whether there was a question of principle involved in the appeal that warranted the recovery of costs.

The court concluded that there was no question of principle that warranted the recovery of costs associated with the appeal. The appeal was not successful, and the court found that the plaintiff was not entitled to recover costs in relation to the unsuccessful appeal. The reasoning focused on the lack of any significant legal issue that would have warranted a different outcome if the appeal had been successful. The court determined that the plaintiff's costs were not recoverable as they were associated with an unsuccessful appeal that did not present any novel legal issues.

As a result of the court's decision, the plaintiff was not entitled to recover costs for the unsuccessful appeal. The court's ruling clarified that such costs were not recoverable in the absence of a question of principle or a significant legal issue that would have warranted a different outcome.

Orders