OPEL Networks Pty Ltd (in liq), In re

[2010] NSWSC 261

CITATION:	OPEL Networks Pty Ltd (in liq), In re [2010] NSWSC 261
HEARING DATE(S):	22 March 2010
JUDGMENT DATE :	22 March 2010
JURISDICTION:	Equity Division Corporations List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	22 March 2010
DECISION:	Liquidators to pay Commonwealth’s costs
CATCHWORDS:	CORPORATIONS - PRODUCTION - Who should bear costs of application for production
CATEGORY:	Consequential orders
PARTIES:	Steven John Sherman and Bruce James Carter in their capacity as joint and several liquidators of OPEL Networks Pty Ltd (in liq) (Plaintiffs/Applicants) Commonwealth of Australia as represented by the Department of Broadband Communications and the Digital Economy (Respondent)
FILE NUMBER(S):	SC 2009/00289665
COUNSEL:	C.A. Moore (Plaintiffs/Applicants) S.G. Habib SC (Respondent)
SOLICITORS:	Baker & McKenzie (Plaintiffs/Applicants) Clayton Utz (Respondent)

2009/289665 OPEL Networks Pty Ltd (in liq)

JUDGMENT – Ex tempore

22 March, 2010

1 This is an application concerning the costs of an application for production of documents which was heard by Austin J and determined on 4 March 2010. His Honour upheld the claim for privilege for production of a number of documents so that the liquidators were largely unsuccessful in their application for production of those documents. His Honour said at the conclusion of his judgment that he was inclined to order the liquidators to pay the Commonwealth's costs, with an exception which is no longer relevant However, his Honour had not heard argument as to costs and so reserved that question.

2 His Honour has since retired and the costs' argument must be determined by me. I can deal with the matter, of course, only on the basis of broad impression.

3 On 10 November 2009 the Commonwealth's solicitors sent to the liquidator's solicitors a letter proposing a compromise in respect of a number of the documents the subject of contention. That compromise was adopted. Production of the documents the subject of that compromise was not in issue before his Honour. The Commonwealth says that there should be no costs order in respect of the issues arising as to those documents but that each would have its costs of the issues actually determined by his Honour. The liquidators say that there should be no costs of the proceedings against them generally.

4 It seems to me that the orders proposed by the Commonwealth are the appropriate costs orders. The compromise did not determine the merits of the dispute; it was proposed and adopted as a practical solution by the parties. Each party should be required to pay its own costs of the issues relating to those documents.

5 As to the documents in dispute, the liquidators complain that evidence in support of the Commonwealth's position was adduced very late in the hearing before his Honour and for that reason they should not have to pay the costs of the issues argued before his Honour. They say that they were not aware of the detailed basis of claims for privilege until that late evidence was put on.

6 I note that that is somewhat inconsistent with the submissions actually put to his Honour, but in any event, it seems to me that clarification of the claims for privilege was at the risk of the liquidators when they decided to press for production.

7 In my opinion, the costs of the issues determined by his Honour ought to follow the event. The liquidators will pay the Commonwealth's costs of the proceedings relating only to those documents the subject of his Honour's determination.

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