Taylor v Dixon Advisory Ltd

Case [2010] ACTSC 161

RICHARD TAYLOR v DIXON ADVISORY LIMITED & ORS
[2010] ACTSC 161
(22 December 2010)

CIVIL PROCEDURE – disclosure – notice for non-party production – similarity to subpoena – costs – quantum of costs – indemnity basis

COSTS – notice for non-party production – similar to costs payable on subpoena – indemnity basis

Court Procedures Rules 2006 (ACT), rr 660, 664, 665, 667, 1752, 6611, Div 2.8.7

Supreme Court Rules 1937 (ACT)

Better Building Services Pty Limited v Dyer [2004] ACTSC 65

Inglis v Moore (1981) 51 FLR 293
J v Australian Capital Territory (2009) 172 ACTR 1
Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 4 ACTLR 114
Lebon v Lake Placid Resort Pty Ltd [1995] 1 Qd R 24
Collins v Godefroy (1831) 1 B & Ad 950; 109 ER 1040
Bank of New South Wales v Withers (1981) 35 ALR 21
Triotas Pty Ltd v Rohn (NSWSC 1903 of 1993, Young J, 20 May 1993, unreported)
Xstrata Queensland Ltd v Santos Ltd and Ors [2005] QSC 358

Charlick Trading Pty Ltd v Australian National Railways Commission (1997) 149 ALR 647 Cadbury Schweppes Pty Ltd v Amcor Limited (No 3) [2008] FCA 1668

Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77
Deposit & Investment Co Ltd (Receivers Appointed) & Ors v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267
Boensch v Pascoe (No 2) [2008] FCA 1127
Kelleher v Anderson [2008] Fam CA 113
Moorehead Nominees Pty Ltd & Ors v Barclays Australia Securities Ltd & Ors (FCA, Hill J, VG63 of 1989, 17 May 1991, unreported)

NMFM Property Pty Ltd v Citibank Ltd (No 9) [1999] FCA 638

Re Bond Corporation Holdings Ltd (1990) 1 ACSR 350

Simpson v Monteith & Ors [2009] NSWSC 156
Pyramid Building Society (In Liq) v Farrow Finance Corporation (In Liq);  Ex parte Farrow, Clarke and Lawson [1995] 1 VR 464
In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 268

No. SC 456 of 2009

Judge:  Refshauge J
Supreme Court of the ACT
Date:   22 December 2010

IN THE SUPREME COURT OF THE     )
  )          No. SC 456 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:RICHARD TAYLOR

Plaintiff

AND:DIXON ADVISORY LIMITED

First Defendant

AND:DIXON ADVISORY & SUPERANNUATION SERVICES PTY LTD

Second Defendant

AND:ALAN DIXON

Third Defendant

AND:DARYL DIXON

Fourth Defendant

ORDER

Judge:  Refshauge J
Date:  22 December 2010 
Place:  Canberra

THE COURT ORDERS THAT:

  1. Upon the completion of the work to be done under the order made on 4 November 2010, the defendants pay the costs of Ord Minnett Limited on an indemnity basis in accordance with r 1752(4) of the Court Procedures Rules 2006 (ACT) insofar as they have been reasonably incurred of:

    (a)Ord Minnett Limited’s consideration of the Notice of Non-Party Production dated 21 June 2010 and its opposition to it, including any legal advice obtained about or legal work done in respect of…

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AGLC
Taylor v Dixon Advisory Ltd [2010] ACTSC 161
Case
[2010] ACTSC 161
Decision Date

CaseChat Overview and Summary

The case of Taylor v Dixon Advisory Ltd involved a dispute between the plaintiff, Taylor, and the defendant, Dixon Advisory Ltd, concerning a notice for non-party production of documents. Ord Minnett Limited, a non-party, was also involved as it was the entity from whom the documents were sought. The dispute was heard by the ACT Supreme Court. The primary focus of the case was the imposition of costs related to the non-party production notice, which bore similarities to a subpoena, and the appropriate basis on which these costs should be awarded.

The legal issues that the court had to decide were the quantum of costs that Ord Minnett Limited was entitled to recover from Dixon Advisory Ltd and the basis on which these costs should be awarded. The court had to consider whether the costs should be awarded on an indemnity basis or on a party and party basis. Additionally, the court needed to determine the specific costs incurred by Ord Minnett Limited in responding to the non-party production notice and the associated legal work done. The court also needed to address whether the costs should include those related to opposing the notice, considering a compromise, and preparing affidavits.

The court held that the defendants, Dixon Advisory Ltd, were to pay Ord Minnett Limited's costs on an indemnity basis for various activities related to the non-party production notice. These included the consideration and opposition to the notice, legal advice and work related to these issues, and the costs of searching for, marshalling, copying, and producing the documents. The court further ruled that certain other costs, such as those related to opposing a claim of conflict of interest by the defendants' solicitors and the preparation of an affidavit, were to be paid on a party and party basis. The court's reasoning was based on the similarity between the non-party production notice and a subpoena, justifying an indemnity basis for the related costs, and the specific nature of the other costs, which warranted a party and party basis.

The final orders required the defendants to pay Ord Minnett Limited's costs on an indemnity basis for specified activities and on a party and party basis for other specified activities, with certain exclusions noted.

Orders

Orders of the court

1.

Upon the completion of the work to be done under the order made on 4 November 2010, the defendants pay the costs of Ord Minnett Limited on an indemnity basis in accordance with r 1752(4) of the Court Procedures Rules 2006 (ACT) insofar as they have been reasonably incurred of:

(a) Ord Minnett Limited’s consideration of the Notice of Non-Party Production dated 21 June 2010 and its opposition to it, including any legal advice obtained about or legal work done in respect of those issues;

(b) Ord Minnett Limited’s consideration of the draft Notice of Non-Party Production attached to the e-mail of Elizabeth Mukherji dated 16 July 2010 and its opposition to it, including any legal advice obtained about or legal work done in respect of those issues;

(c) Ord Minnett Limited’s canvassing of a compromise in respect of the production of documents sought by the defendants, including any legal advice obtained about or legal work done in respect of those issues;

(d) Ord Minnett Limited’s consideration of the application of r 667 of the Court Procedures Rules 2006 (ACT), including any legal advice obtained about or legal work done in respect of those issues; and

(e) Ord Minnett Limited’s costs of searching for, marshalling, where necessary copying any documents to be produced to the defendants in accordance with the order of 4 November 2010 and any necessary consideration of the documents and attendances to produce them.

2.

The defendants pay the costs of Ord Minnett Limited on a party and party basis of:

(a) Ord Minnett Limited’s consideration of the claim by the defendants that its solicitors should cease to act because of a conflict of interest; and

(b) Ord Minnett Limited’s preparation of the affidavit of 23 August 2010.

3.

The defendants pay the costs of Ord Minnett Limited on an indemnity basis of the Application in Proceedings dated 25 October 2010, but such costs not to include the costs of amendment of that Application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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