Oswal v Australia and New Zealand Banking Group Limited (Security for costs - Stage 2)
[2016] VSC 119
•31 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2011 4653
BETWEEN
| RADHIKA PANKAJ OSWAL | Plaintiff |
| and | |
| AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522) & ORS | Defendants |
S CI 2012 1995
BETWEEN
| PANKAJ OSWAL | Plaintiff |
| and | |
| IAN MENZIES CARSON & ORS | Defendants |
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JUDGE: | SIFRIS J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 March 2016 |
DATE OF JUDGMENT: | 31 March 2016 |
CASE MAY BE CITED AS: | Oswal v Australia and New Zealand Banking Group Limited & Ors (Security for costs – Stage 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 119 |
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COSTS – Security for costs – Amount of security to be provided – Broad brush approach.
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APPEARANCES: | Counsel | Solicitors |
| For Mr and Mrs Oswal | Mr P Wallis | Watson Mangioni Lawyers |
| For the ANZ Banking Group Limited and the Receivers | Mr P H Solomon QC with Mr D Lorbeer | Herbert Smith Freehills |
| For the Apache parties | Mr S M Anderson QC with Mr S L Friere | Clyde & Co |
| For Yara Australia and Chemical Holdings | Mr J A Redwood | Clayton Utz |
HIS HONOUR:
Introduction
On 24 February 2016, I published reasons for deciding that Radhika and Pankaj Oswal (each a plaintiff in proceedings S CI 2011 4653 and S CI 2012 1995 respectively) should provide security for the costs of the ANZ and the Receivers, the Apache parties, Yara Australia and Chemical Holdings.[1]
[1][2016] VSC 52 (Stage 1 Judgment). I will assume familiarity with the Stage 1 Judgment. Defined terms and abbreviations are the same.
On 23 March 2016, I heard argument on the amount of security to be provided. It was agreed that this Stage 2 hearing would be dealt with after the Stage 1 Judgment.
The ANZ and the Receivers claim security in the order of $5.1 million–$5.3 million, representing both past costs and disbursements[2] and future disbursements up to and including the first day of trial. For reasons given below, I assess such security at $3,500,000.[3]
[2]For reasons set out in the Stage 1 Judgment (at [58]-[60]), I determined that ANZ and the Receivers should have security for their past costs from November 2014.
[3]The actual figure is $3,570,846 (see below). However I will reduce that to $3,500,000.
The Apache parties claim security in the sum of $802,039.98 for future disbursements up to and including the first day of trial.[4] For reasons given below, I assess such security at $400,000.[5]
[4]Being the costs from the date of issue of their summons.
[5]The actual figure is $402,737. However I will reduce that to $400,000.
Yara Australia claims security in the sum of $674,382.05 for future disbursements up to the first day of trial.[6] For reasons given below, I assess such security at $500,000.[7]
[6]Being the costs from the date of issue of their summons.
[7]The actual figure is $499,453. However I will round this up to $500,000.
Chemical Holdings claim security in the sum of $590,759.66 for future disbursements up to and including the first day of trial.[8] For reasons given below, I assess such security at $86,000.[9]
[8]Being the costs from the date of issue of their summons.
[9]The actual figure is $85,900. However I will round this up to $86,000.
Approach to assessment of security
Before dealing with each applicant, it is useful to set out the relevant applicable principles which were not in dispute.
In Premier Building and Consulting Pty Ltd v Spotless Group Ltd (No 7),[10] Byrne J said:
(5)I have not and will not, for the purposes of these applications, descend into the detail of the work done and to be done by the defendants to prepare for trial. My task is not that of a Taxing Master confronted with a bill of costs; it is to make an estimate of what, in the light of the evidence before me and in the light of my familiarity with the case, is a fair amount to achieve to objective of an order for security. This not to provide a defendant with an indemnity for the expenses of defending the claims against it, but to provide it with protection against the risk that an order for party and party costs in its favour might not be satisfied.
(6)… I am undertaking nothing in the nature of a final determination of the costs to which the applicants might be entitled after a favourable judgment has been obtained. …
[10][2005] VSC 275.
In Seven Network Limited v News Ltd,[11] Sackville J said in relation to a gross sum costs order:
30Care should be taken, however, to ensure that the process does not take on too many of the characteristics of a taxation of costs. There is a danger, perhaps reflected to a limited extent in some of the evidence adduced on this application, that the parties will descend too far into the minutiae of the rules governing a taxation and will spend disproportionate time analysing the application of specific items in Schedule 2 to the costs claimed by the successful party. The process should direct attention primarily to issues of principle that explain the differences in the positions taken by each party in relation to the assessment of recoverable costs. For the most part, the reports and oral evidence of the experts in this matter concentrated on the more general issues.
[11][2007] FCA 2059.
In Norcast S.A.R.L. v Bradken Ltd,[12] Gordon J said:
17… The traditional approach is for the respondent to engage what is known as a “costs consultant” to prepare an affidavit setting out the steps likely to occur up to and including the first day of trial with an estimate of the party-party costs of each step which would be recoverable by the respondent were it to succeed and obtain an order for its costs. …
18An alternative approach is for the respondent’s own solicitor to give evidence as to the likely steps and the costs to be incurred in completing each step. Because the respondent’s solicitor is unlikely to also be a specialist in the field of costs consulting, such evidence usually relies upon a calculation of “actual costs” (ie, costs which would be payable on an indemnity basis) discounted by some factor.
[12][2012] FCA 765.
In Wieland v Texxcon Pty Ltd; Nominexx v Wieland (No 2),[13] Wood AsJ, an acknowledged expert in the field, said in relation to the available options when dealing with a gross sum costs order:
16In oral submissions to the Court of Appeal on 16 November 2015, counsel for the applicants posited that the method proposed by Ms Paver was the only one available. In my view there is no one option in terms of methodology in a gross sum exercise. It will depend on the basis for costs recovery ordered in favour of the recovering party.
17As discussed in Pegela, there are several options available in relation to methodology. One option is the ‘analogy’ method to ‘review previous gross sum cases to identify what the percentage reduction on costs was in those cases and adopt an appropriate reduction by reference to previous practice’. This is not an attractive option having regard to the wide range of percentages of recovery across a number of example cases referred to by Sackville J in the Seven Network Limited v New Limited.
18A second option has been referred to as the ‘adjusted fees’ methodology. This is a possible option where costs are recoverable on scale. It involves taking the base hours from time records and multiplying them by the scale rate, adjusting it to account for the different scale rates applicable for particular types of work and then applying a loading for general care. This is closest to the one proposed by the applicants and said in argument to Beach JA in this matter to be the only option.
19A third option is the ‘Ausmaq’ method. This can be favoured where costs are to be assessed on hourly rates. This involves actual costs incurred, identifying work that falls outside the scope of the costs order, and then breaking the figure down to costs and disbursements. As a next step appropriate hourly rates are determined and then a final calculation is made on the basis of the hourly rate options, the cost reduction for unreasonable work and the addition of disbursements.
20Other methodologies have been referred to in case law.
[13][2016] VSC 109 (18 March 2016).
In Pathway Investments Pty Ltd & Anor v National Australia Bank Limited,[14] Davies J said:
[14][2012] VSC 97 (footnotes omitted).
Insufficiency of Evidence
15It was argued for the plaintiffs that there was insufficient evidence before the Court about the actual work undertaken and the future work to be undertaken to enable the court to fix an appropriate amount of security for costs. This submission was made recognising that in ordering security for costs the Court does not set out to give complete and certain indemnity. In Quadrant Constructions Pty Ltd v Morgan Smith Barney Aust Pty Ltd, Forrest J stated that:
... it is necessary to look at costs both in the broad, as well as scrutinizing the individual items – but not to the extent of minute examination. Descending into too much detail does not assist in the conduct of the exercise because by its nature it is necessarily imprecise and requires guesstimates as much as estimates.
In Bryan E Fencott Pty Ltd v Eretta Pty Ltd, French J stated that the process of estimation embodies to a considerable extent necessary reliance on the “feel” of the case after considering relevant factors. But there must be some substantiation of the likely party/party costs to enable the Court to determine an appropriate amount of security based on estimated probable costs, insofar as those costs can be ascertained.
…
37… The task of the Court here is not to fix a gross sum amount but to fix an amount by way of security that is “sufficient”. The Court is not bound to give the amount of security that the party seeking the security estimates to be the amount of its costs, nor must the amount be determined with mathematical precision. Significantly, Mr Matters did not cavil with the methodology that Ms Harris employed in calculating estimated costs on a gross sum assessment basis but rather his difference of opinion was that no reliable opinion could be formed without a review of Freehills’ file. Mr Linsdell did not have the relevant experience to opine on an estimation of costs on a gross sum assessment basis.
38… The sufficiency of that evidentiary foundation may be reason for the Court looking critically at the estimate that she provided, but I do not accept the submission that the application was based on insufficient information. …
Accordingly, I will adopt a broad brush approach having regard to the information before the Court and my extensive knowledge of the case over the past few years. In many aspects, the methodology will be apparent. I will look backwards and forwards. The methods are not mutually exclusive. The aim is to arrive at a reasonable estimate of the applicants’ costs which the Oswals would be ordered to pay if they are unsuccessful at trial.
ANZ and the Receivers
Past costs
The amount claimed for solicitors costs is $2,030,000.[15] The actual amount billed for solicitors costs during the period November 2014 to 25 February 2016 was $5,741,687.11.
[15]The amount of $2,280,000 has been reduced by $250,000 to allow for solicitors costs incurred by ANZ and the Receivers in December 2015 in a dispute over privileged documents. ANZ and the Receivers were ordered to pay the costs of that application. The estimated amount is $250,000.
During the period commencing 1 November 2014, and ending February 2016, various significant tasks were undertaken by Herbert Smith Freehills (HSF), including: drafting pleadings and providing further and better particulars; conducting and reviewing discovery; preparing documentary and lay witness evidence; instructing two expert witnesses; conducting comprehensive legal research concerning the pleaded causes of action; preparing for and attending mediation; preparing for and attending case management conferences; and preparing for, and attending, numerous contested interlocutory hearings, including discovery and privilege applications.[16] There was also a significant amount of correspondence between HSF and the plaintiffs’ solicitors.[17]
[16]Adams affidavit sworn 10 March 2016, paragraph [23].
[17]Adams affidavit sworn 10 March 2016, paragraph [24].
It was submitted that the estimate of the amount that would be recoverable on a taxation on a standard basis in respect of past solicitor costs is premised on:
(a) 4 solicitors being engaged full time on the proceedings;
(b) an hourly rate of $380, being the Supreme Court scale rate for work done in the period from 1 January 2015 to 31 December 2015;
(c) the 4 solicitors each charging 2000 hours during the period from 1 November 2014 to 24 February 2016 (this is based on 300 working days during the period and the solicitors each recording 6.66 hours per day);
(d) the application of a discount of 25% in recognition that not all work performed by the 4 solicitors would be claimable on a standard taxation.[18]
[18]The sum of $2,030,000 is calculated as follows: The sum of $5,741,687.11 was based on the work of seven full time solicitors. Four solicitors equates to $3,040,000. A reduction of 25% equates to $2,280,000. A further reduction of $250,000 results in $2,030,000.
The estimate represents about 40% of the amount in fact invoiced or to be invoiced, and is based on a number of hours (6000) that is less than half of the total hours in fact invoiced or to be invoiced.[19]
[19]Discerned from the ‘blended rate’ calculated at paragraph [19] of the Adams affidavit sworn 10 March 2016 and the total amount invoiced or to be invoiced.
The Oswals submitted that the amount was far too high, the evidence in support insufficient or inadequate, and that the wrong methodology was used.
First, it was submitted that although a ‘broad brush’ assessment was appropriate, there must be a proper evidentiary foundation.
In calculating their past costs, ANZ and the Receivers rely on the actual solicitor/client costs as billed by HSF.[20] ANZ and the Receivers have, it was submitted, put forward very limited evidence as to the specific steps that they took during the relevant period which have caused solicitor/client costs to be incurred.[21] On any view, the evidence put forward by ANZ and the Receivers in support of their application for security for costs is, it was submitted, substantially less detailed than would customarily be put forward in respect of an application for a substantial amount of security in the order of $5 million.[22]
[20]Table of past costs in exhibit KAA-1 to the Adams affidavit.
[21]Adams affidavit at [10]-[26].
[22]Cf the evidence put forward by Herbert Smith Freehills in support of the application for security for costs in Pathway Investments Pty Ltd v National Australia Bank Ltd [2012] VSC 97 at [16]-[26].
The limited evidence that ANZ and the Receivers have put before the Court, it was submitted, reduces the capacity of the Court to accurately quantify the likely party/party costs of ANZ and the Receivers. The Oswal parties have, it was submitted, filed evidence by experienced practitioners to the effect that, on the information provided, it is not possible to reliably estimate the party/party from the solicitor/client costs incurred by ANZ and the Receivers.[23] The Oswal parties submit that this should be reflected in the Court adopting a cautious approach in estimating the amount of security, in particular, by applying a very substantial discount to the solicitor/client costs. Faced with such a paucity of evidence from the applicant for security, the Court is, it was submitted, required to err on the side of caution by ordering less rather than more security.
[23]Biggs affidavit sworn 18 March 2016 at [10] and Mazzeo affidavit sworn 18 March 2016 at [9]-[41].
In any event, a more reasonable and reliable percentage discount to be applied to the solicitor/client costs of ANZ and the Receivers so as to arrive at an estimate of their likely party/party costs can, it was submitted, be obtained from historical indications that ANZ and the Receivers have provided to the Court.[24] On this basis, it was submitted that the discount should be 80%.
[24]In the original Security for Costs application ANZ and the Receivers divided the estimate of the party/party costs of $5.4 million by the actual solicitor/client costs of $28 million (as at June 2014) giving a fractional multiple of 19.3% which can be rounded to 20%.
Further, it was submitted that the period should be adjusted to exclude costs incurred between 21 November 2015 and February 2016. This is necessary to give effect to paragraphs [60] and [61] of the Stage 1 Judgment, which granted ANZ and the Receivers past costs only up to the date of their applications for security. Such an adjustment, it was submitted, results in a reduction of $2,531,636.92.[25]
[25]This is calculated by deducting all of the costs assigned to December 2015 to February 2016, plus one third of the costs assigned to November 2015 ($367,738.83).
Finally, it was submitted that the amount of disbursements should be reduced by an amount to fairly reflect the fact that some of the disbursements incurred between 1 November 2014 and January 2015 relate to work undertaken prior to 1 November 2014.[26] The more recent evidence from ANZ and the Receivers on this question confirms that various disbursements billed on or after 1 November 2014 included in the table in KAA-1 ‘may’ contain a portion of fees for work undertaken prior to 1 November 2014.[27] However, ANZ and the Receivers have not, it was submitted, put forward any evidence as to what this portion actually is. In the circumstances, given the uncertainty, the Oswal parties submit that a discount of 30% for disbursements in the three months from November 2014 to January 2015 inclusive of both is appropriate, resulting in a further reduction of $160,504.20.
[26]Biggs affidavit at [14]-[16].
[27]Adams affidavit sworn 21 March 2016 at [5].
In the exercise of my discretion, and taking a ‘broad brush’ approach, I consider that an amount of $1,488,025 should be ordered in relation to past solicitors’ costs.
I consider that in the circumstances of this case, an acceptable starting point is the solicitor and client costs actually billed. It was not suggested by any party, correctly in my view, that a bill in taxable form or similar detailed and itemised document was required. Rather, the debate centred around what sort of detail was required. In the end, and on balance, and not without some hesitation, I consider that the evidential foundation and explanations given are, for the most part, sufficient for the Court to act on if it is to take a ‘broad brush’ approach. This is particularly so in light of my extensive knowledge of the case, having engaged in intensive case management over the last few years.
I propose to make the following adjustments to the sum of $2,030,000 which is based on actual billed costs of $5,741,687.11.
First, solicitors costs for the period 19 November 2015 to 24 January 2016 should be excluded. I intend to allow past costs only up to the date of the summons, that is, 19 November 2015. The amount is $1,402,095.[28]
[28]I have allowed 2/3 of the costs for November 2015. The Oswals’ calculation (see footnote 25) incorrectly includes disbursements. Solicitors costs from 19 November 2015 are more properly to be regarded as future costs. They should be embraced by the decision made by all applicants, not to claim security for future solicitors costs.
Second, I do not agree or accept that the scale rate of $380 should, by reference to the solicitors costs actually billed, determine the number of hours spent by seven solicitors, in order to determine the number of hours spent by four solicitors. The logic is false. Because the solicitors were billing more (between $262.40 and $733.21 with an average of $446)[29] it is probable that less than 15,000 solicitor hours were spent. It is these hours that the scale rate of $380 per hour should apply to. Using the average of $446, and excluding the billed costs of $1,402,095, the number of hours is 9,730 hours for seven solicitors. Four solicitors equates to $2,112,800.[30]
[29]Paragraph 19 of Adams affidavit of 10 March 2016.
[30]$5,741,687-$1,402,095 = $4,339,592
$4,339,592÷446 = 9730 hours
9730 hours x $380 = 3,697,400 (4 salaries = $2,112,800).
I agree with all other assumptions which, in my opinion, given the nature of the case, are reasonable.
Reducing $2,112,800 by 25% gives a figure of $1,584,600.[31]
[31]The amount is about 36% of solicitor client billed costs.
Past disbursements
The estimate of the amount recoverable in respect of past disbursements — approximately $2,500,000, before a reduction for the December 2015 orders — comprises:
(a) an estimate of recoverable counsel fees of $1,988,460.11 (reducing Senior Counsel’s rates to that recoverable at scale, notwithstanding that, in complex matters, fees incurred for Senior Counsel may be recovered at rates above scale);[32]
(b) $546,607.99 on account of other (non-counsel) disbursements.[33]
[32]Adams affidavit sworn 10 March 2016, paragraphs [31]-[32].
[33]Adams affidavit sworn 10 March 2016, paragraphs [35].
A reasonable further reduction for the December 2015 orders may then be allocated, in an amount of $150,000. Accordingly, it is submitted that $2,350,000 is an appropriate figure.
I consider that the sum of $2,350,000 does not represent the reasonable, recoverable, past disbursements for which security should be provided.
I am content to include in the assessment of past disbursements, the period November 2015 to 24 February 2016, because unlike solicitors costs, it does not matter. However, these disbursements include the costs of this very application, other interlocutory steps, mediation and case management conferences in which costs have been reserved. Further and more relevantly, the amounts are too high. I propose to make a further reduction of 50% in respect of counsel’s fees. I consider that two senior counsel and two (or perhaps four) junior counsel working through the interlocutory stages does not represent an amount that is a reasonable estimate of recoverable disbursements. The amount that I consider is reasonable is $994,230. I propose to add the sum of $450,000 in respect of other disbursements. I have made a reduction of about $96,000. I do not consider that all of the mediation and expert fees would be recoverable. Further, and in this respect, the evidential foundation is not entirely satisfactory. The total for past disbursements is $1,444,230.
Future counsel fees
The estimate of the recoverable amount — $900,000 — in respect of future disbursements (counsel fees only), to the first day of trial, is based on:
(a) Senior counsel requiring at least 40 days’ preparation in total, and 2 junior counsel (one at $4,800 a day and the other at $4,100 a day), each requiring 60 days’ preparation;[34]
(b) One Senior Counsel and one junior counsel attending the first day of trial;[35]
(c) The application of scale rates in respect of senior counsel.
[34]Adams affidavit sworn 10 March 2016, paragraph [39].
[35]Adams affidavit sworn 10 March 2016, paragraph [40].
The Oswals contended that one junior counsel is sufficient, and 30-40 days (not 60 days) should be allowed. In relation to senior counsel, it was submitted that 35 days was sufficient.
Based on my knowledge of the case, I agree in part with the submission made on behalf of the Oswals. In addition to the first day of trial, the more senior of the junior counsel should be allowed 50 days preparation and Senior Council 35 days. The total amount is $542,016.[36]
[36]$8,256 x 36 days = $297,216
$4,800 x 51 days = $244,800.
Apache parties
The Apache Defendants seek an order that the Oswals provide security for their costs from the date of their summons filed 1 December 2015 up to and including the first day of trial, in the sum of $802,039.98.
The sum of $802,039.98 is made up of the components referred to in the document entitled ‘Apache defendants’ revised itemised list of proposed amount of security’, set out at exhibit ‘JLP-41’ to the affidavit of Jennifer Louise Priestley sworn 10 March 2016.
Counsel’s fees
The Apache Defendants seek security in respect of counsel’s fees in the sum of $932,720.36 less a discount of 20% (as referred to below). This sum represents the aggregate of:
(a) Fees actually invoiced by counsel between 1 December 2015 and 29 February 2016 ($273,811.41 — senior counsel: $91,636.27 — junior counsel); and
(b) Counsel’s fees that are anticipated will be incurred by the Apache Defendants between 1 March 2016 and the first day of trial ($425,454.64 — senior counsel; $141,818.04 — junior counsel).
For senior counsel’s fees for work prior to 1 January 2016, the maximum scale rate then prevailing of $8,094 per day has been applied. Effective 1 January 2016, the maximum scale rate for senior counsel was increased to $8,256 per day. Senior counsel’s daily fee falls below the new maximum scale rate.
Junior counsel’s daily fee falls below the applicable maximum scale rates.
The allowance made for trial preparation for counsel is one day of preparation for each day of trial. This, it was submitted, is a reasonable and appropriate allowance for this matter, given the complexity of the claims and the extent of the evidence.[37] This estimate has been provided in consultation with both junior and senior counsel.[38]
[37]Affidavit of Jennifer Louise Priestley sworn 10 March 2016, paragraph 26.
[38]Ibid.
The current proposed trial schedule provides for a minimum of 62 days of hearing. Taking into account time already spent on trial preparation, an allowance has been made of 3 days per week during March 2016 for senior and junior counsel (a total of 12 days each), increasing to 5 days per week during April and May 2016 for senior and junior counsel (a total of 40 days each).
The Oswals contend that the Apache parties should not be permitted to seek an increased amount, or higher amount, than that submitted at the time the application was made. It was contended that this constitutes an abuse of process. Apart from this point, they contend that the revised trial preparation estimate is excessive and should not be different to that originally proposed.
In my opinion, the Apache parties are entitled to rely on the revised estimates. By giving lower estimates at the time the summons was issued, based on the circumstances then existing including the earlier trial date, I do not consider that in changing or revising their position, they have approbated and reprobated or are otherwise precluded from advancing a revised position. I do not consider that they are in the circumstances acting inconsistently.
However, I consider that in relation to trial preparation, 35 days should be allowed for senior counsel and 50 days for junior counsel. The first day of trial should also be allowed for both senior and junior counsel. The total amount for counsel’s fees is therefore $433,593. Reduced by 20% the amount is $346,874.
Expert’s fees and other disbursements
The Apache Defendants seek security in the sum of $24,529.62 less a discount of 20% in respect of anticipated expert witness fees to be incurred in the lead up to trial.[39] The Apache Defendants’ expert valuation witness, Professor Zmijewski, charges US$800 per hour for his professional services.[40]
[39] Affidavit of Jennifer Louise Priestley sworn 10 March 2016, ex. ‘JLP-41’.
[40]Affidavit of Jennifer Louise Priestley sworn 10 March 2016, paragraph 29.
Prior to trial, Professor Zmijewski will, it was submitted, be required to review the voluminous material filed by the parties, and then prepare himself for giving evidence at trial. An allowance of 20 hours has been made by the Apache Defendants. This allowance is conservative given the volume of material filed to date.[41]
[41]Affidavit of Jennifer Louise Priestley sworn 10 March 2016, paragraph 31.
The Apache Defendants seek security in the sum of $45,300.00 less a discount of 20% for other anticipated disbursements. These disbursements comprise travel expenses including those to be incurred by the solicitors for the Apache Defendants in travelling to Melbourne for future case management conferences and the first day of trial and in travelling to Houston to conduct witness interviews prior to the commencement of the trial.[42]
[42]Affidavit of Jennifer Louise Priestley sworn 10 March 2016, paragraphs 33 to 36.
This conservative allowance has been made, it was submitted, on the assumption that two solicitors will be required to attend the two listed dates for court hearings (21 March and 31 March 2016), together with one further case management conference. An allowance has been made for accommodation expenses for the night before each such hearing.[43]
[43]Affidavit of Jennifer Louise Priestley sworn 10 March 2016, paragraphs 34 and 35.
Provision has also been made for senior counsel and two solicitors to travel to Houston for a period of five days in order to complete witness interviews.[44]
[44]Affidavit of Jennifer Louise Priestley sworn 10 March 2016, paragraph 36.
A discount of 20% has been applied to the total of the sums referred to in the Apache Defendants’ revised itemised list, reflecting the costs referable to preparation of Apache Northwest’s counterclaim.[45] The plaintiffs appear to accept the appropriateness of the 20% discount.[46]
[45]Affidavit of Jennifer Louise Priestley sworn 10 March 2016, paragraph 37.
[46]Oswal parties’ response to Apache Defendants’ itemisation of quantum of security.
The Oswals submit that it is unlikely that travel and accommodation costs would be recovered.
In my opinion, the expert witness fees and travel and accommodation costs are reasonable and potentially recoverable. Security in the amount suggested should be provided. The amount is $69,829. Reduced by 20%, the amount is $55,863.
Yara Australia and Chemical Holdings
The amounts sought relate to future costs and include counsel’s fees and other disbursements.
Yara Australia claims $674,382.05. The breakdown is as follows —
• Senior counsel’s fees from 1/12/2015-25/2/2016 $12,889.39 • Senior counsel trial preparation — 20 days at $8,094 • Junior counsel fees from 1/12/2015-25/2/2016 $113,300 • Junior counsel trial preparation — 60 days at $5,150 • Travel and accommodation expenses of $78,174 • Experts’ costs from 1/12/2015-25/2/2016 $60,650 • Experts’ costs from 29/2/2016 — $13,580
Chemical Holdings claims $590,759.66. The breakdown is as follows —
• Senior counsel fees from 1/12/2015-25/2/2016 $48,159.30 • Senior counsel trial preparation — 20 days at $8,094 • Junior counsel fees from 1/12/2015-25/2/2016 $69,725 • Junior counsel — trial preparation — 60 days at $4,545 • Travel and accommodation expenses
The critical issue (other than the waiver point and the excessive amounts claimed) relates to whether separate senior and junior counsel is required. Yara Australia and Chemical Holdings contend that their interests are sufficiently disparate so as to entitle them to separate representation. The Oswals disagree.
In respect of the issue of separate counsel, it was submitted that an analysis of the relevant background and pleaded issues demonstrates that it is not possible for the Court to conclude that the party/party costs of the Yara parties that might ultimately be ordered would include separate senior and junior counsel for Chemical Holdings at all, let alone for the amount of time sought by the Yara parties.
Chemical Holdings Pty Ltd is the corporation previously named Apache Fertilisers Pty Ltd. Under its original name, it was part of the Apache group. It is a special purpose vehicle incorporated by those parties (and perhaps others) to effect the purchase of the Oswal parties shares in the corporation then known as Burrup Holdings Limited, and now known as Yara Pilbara Holdings Pty Ltd.
Chemical Holdings was incorporated on 21 September 2011. It was named as ‘Buyer’ in a (later superseded) Share Sale Deed in respect of the Oswal parties’ shares executed on or about 28 November 2011. It was later Buyer under one of the two Share Sale Deeds executed by it and Yara Australia Pty Ltd on or about 31 January 2012 in respect of the Oswal parties’ shares — the ‘final’ documents defining the transactions attacked by the Oswal parties.
Up until late November 2015, Chemical Holdings was represented by the same solicitors and counsel as Apache Corporation, Quadrant Northwest Pty Ltd and Quadrant Energy Australia Limited (ie the Apache parties).
At the Case Management Conference on 26 November 2015, however, the same counsel appeared for both Yara Australia and Chemical Holdings announcing (T 35.29 to T 36.7):
I should also inform Your Honour to the extent Your Honour isn’t aware that I now act for Chemical Holdings also, which is the renamed entity for Apache Fertilisers. On 29 October Yara International acquired a hundred per cent of the shares in Apache Fertilisers, which, of course Your Honour, would know Apache Fertilisers purchased 49 per cent of the shares. And I should let you know, Your Honour, that the terms of that transaction were for — that purchase was for US$391m.
At about the same time, Chemical Holdings began to be represented by the same solicitors as Yara Australia. Chemical Holdings and Yara Australia were represented by the same counsel at the hearing of the First Stage of the security applications on 8 February 2016. They were represented by separate counsel at the Case Management Conference on 2 February 2016, as well as at the more recent Case Management Conference on 8 March 2016.
In substance, what has occurred, it was submitted, is that, because of a voluntary sale of shares (apparently unrelated to the Oswal parties’ claims) in late October 2015, in circumstances where all the transacting parties were well aware of these proceedings, Chemical Holdings has shifted camp from that of the Apache parties to that of Yara Australia. Because of this, it is said that a new set of interests has arisen, or might arise, with the result that the Oswal parties must now pay more by way of security in order to advance their bona fide claims (on foot for more than 4 years) than would otherwise have been the case.
Against this, the Oswal parties submit that it would be inappropriate for the Court to order a greater quantum of security against the Oswal parties simply because the defendants have made certain arrangements between them, some four years after the commencement of the Oswal parties’ claims. Putting aside those that stand behind Chemical Holdings, and taking it simply as a separate juridical person, and one among a number of defendants to the proceedings, it is unjustified and unjustifiable, it was submitted, that the Oswal parties should be required to pay more by way of security simply because that party has decided to change solicitors and retain new counsel, effectively on the eve of trial.
It was submitted that a review of the Oswal parties’ pleadings supports this analysis. There are no allegations put by the Oswal parties against Chemical Holdings which are not also put either concurrently, or in parallel, against Yara Australia or the Apache parties. For instance, the allegations put against Chemical Holdings by reason of its being a purchaser with notice are also made in virtually identical terms against Yara Australia, and the factual enquiry posed by these allegations as pleaded and particularised is of very narrow compass (see eg paragraphs 49.3 and 52.3 of Mrs Oswal’s statement of claim).
Chemical Holdings came into existence on 21 September 2011 and the purposed sale to it of 49% of the shares in Holdings (approximately two-thirds of the Oswals’ shares) was completed about four and a half months later, on or about 1 February 2012. It is therefore to a relatively short period of time that the factual enquiry as to its knowledge, and so on, is directed. To the extent that allegations of this kind are made, for which there is not a clear parallel allegation against Yara Australia, the same allegations are made against Chemical Holdings as one of the (then) ‘Apache Entities’ (see eg paragraph 38.5 of Mrs Oswal’s statement of claim).
It was of course open, it was submitted, to Chemical Holdings to maintain post 29 October 2015, the same legal representation that it had prior to that date, notwithstanding the change in its ownership. The fact that it chose not to do so speaks to the reality that its new owners and management considered there to be some commercial benefit in Chemical Holdings not only changing solicitors but also changing to the very same firm of solicitors that represents Yara Australia in these proceedings. It is to be inferred from this, it was submitted, that there is in fact likely to be a costs saving in this common representation, and therefore a very significant, if not complete, overlap in the work required on behalf of these entities, not only from the solicitors but also from counsel.
In these circumstances, it was submitted that no separate amount of security should be allowed to Chemical Holdings.
There is considerable force in these submissions. Of course, Chemical Holdings is entitled to engage counsel of its choice. However, the question is whether this is reasonable in the circumstances, or represents a ‘luxury’ that may not be recoverable on a taxation.
In my opinion, and to the extent that there are truly and realistically distinct interests, it is sufficient if separate junior counsel is retained to ‘look after’ these distinct interests. In the scheme of things they are minor. I will not allow security for senior counsel fees or any travel expenses. Further I will only allow junior counsel for 20 days and the first day of the trial. The total is $95,445.
For the reasons given, I reject the abuse of process argument.
In relation to Yara Australia, I propose to allow (and whether or not billed) 20 days preparation for senior counsel and 50 days preparation for junior counsel. This is in addition to the first day of trial. The total is $432,624.
I propose to reduce the travel and accommodation expenses by $30,000. The solicitors travel costs have been overestimated. The revised amount is $48,174.
In relation to the costs of the experts, I propose to allow $74,150.
In relation to the discount for the counterclaim, I consider that 10% is appropriate.
In all of the circumstances and doing the best that I can, I consider that the Oswals should provide security for costs as follows: —
• Yara Australia — $499,453 • Chemical Holdings — $85,900
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