Wib Australia Pty Ltd v Bi (No 2) - [2024] NSWDC 51

District Court

New South Wales

Medium Neutral Citation: WIB Australia Pty Ltd v Bi (No 2) [2024] NSWDC 51
Hearing dates: 2 February 2024 (written submissions); 15 February 2024
Date of orders: 23 February 2024
Decision date: 23 February 2024
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
There be no order as to the costs of the proceedings with the intent that each party is to bear its or their costs of the proceedings.

Catchwords:
COSTS – defendants were unsuccessful on a number of issues – Calderbank offers were made by successful defendants – appropriate costs order – whether failure by the plaintiff to accept Calderbank offers was unreasonable in the circumstances

Legislation Cited:
Australian Securities and Investments Commission Act 2001 (Cth)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
AB v Keanes(No 2) [2019] NSWDC 765
Calderbank v Calderbank [1975] 3 All ER 333
Della Franca v Lorenzato; Burwood Council v Lorenzato(No 2) [2022] NSWCA 53
Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145
Huang v Muse Beauty Salon Waterloo Pty Ltd (No 5); Muse Beauty Salon Waterloo Pty Ltd v Huang (No 5) [2022] NSWDC 248
Hutley v Costco (No 2) [2021] NSWCA 335
McInnes v Rheem Australia Pty Ltd [2021] NSWCA 89
McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Oshlack v Richmond River Council [1998] HCA 11; (1988) 193 CLR 72 at 122
Real Estate Property Management Pty Ltd v WaterCorp Investments Pty Ltd [2018] NSWCA 194
Sze Tu v Lowe (No 2) [2015] NSWCA 91
United Resource Management Pty Ltd v Par Recycling Services Pty Ltd (No 2) [2024] NSWCA 29
Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160
WIB Australia Pty Ltd v Bi [2023] NSWDC 571

Category: Costs
Parties: WIB Australia Pty Ltd (Plaintiff)
Shainaz Bi (First Defendant)
Shabnum Begum (Second Defendant)
Representation:
Counsel:
M Daniels (Plaintiff)
G Radcliff (First and Second Defendants)
Solicitors:
SMB Law (Plaintiff)
Legacy Legal (First and Second Defendants)

File Number(s): 2022/00161536
Publication restriction: No

JUDGMENT

Before the Court is the issue of the appropriate costs order to be made following the Court’s decision in WIB Australia Pty Ltd v Bi [2023] NSWDC 571 (“the Judgment”), handed down on 15 December 2023.
In that decision, the Court found for the defendants, Ms Bi and Mrs Begum. However, the plaintiff was successful on a number of significant issues which had been pleaded by the defendants and which consumed significant hearing time at the final hearing.
When the Judgment was handed down, on the application of the parties, directions were made by the Court for the filing of written submissions and for the issue of the appropriate costs order to be listed for hearing.
Both parties filed written submissions on 2 February 2024. In substance, while accepting to some extent that an order that there be no order as…

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] NSWDC 51
Decision Date: 23 February 2024

CaseChat Overview and Summary

Wib Australia Pty Ltd brought proceedings against Bi in the Federal Circuit Court, seeking damages for alleged breaches of fiduciary duties and misuse of confidential information. The defendants, Bi, were unsuccessful on a number of issues, leading to a consideration of costs under the Calderbank principle. The court was required to determine whether the plaintiff's failure to accept Calderbank offers made by the successful defendants was unreasonable and whether the court should make a costs order in their favour.

The court examined the circumstances surrounding the Calderbank offers and the plaintiff's responses. It considered the nature of the offers, the timing, and the plaintiff's reasons for rejecting them. The court found that the Calderbank offers were genuine and that the plaintiff's failure to accept them was unreasonable in the circumstances. The court concluded that an appropriate costs order should be made in favour of the defendants.

The court ordered that there be no order as to the costs of the proceedings with the intent that each party is to bear its or their costs of the proceedings. This means that neither party is entitled to a costs order, and each party will bear their own costs incurred during the proceedings. The court's decision highlights the importance of evaluating Calderbank offers carefully and the potential consequences of rejecting them without reasonable justification.

Orders

Orders of the court

There be no order as to the costs of the proceedings with the intent that each party is to bear its or their costs of the proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	WIB Australia Pty Ltd v Bi (No 2) [2024] NSWDC 51
Hearing dates:	2 February 2024 (written submissions); 15 February 2024
Date of orders:	23 February 2024
Decision date:	23 February 2024
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	There be no order as to the costs of the proceedings with the intent that each party is to bear its or their costs of the proceedings.
Catchwords:	COSTS – defendants were unsuccessful on a number of issues – Calderbank offers were made by successful defendants – appropriate costs order – whether failure by the plaintiff to accept Calderbank offers was unreasonable in the circumstances
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth) Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	AB v Keanes(No 2) [2019] NSWDC 765 Calderbank v Calderbank [1975] 3 All ER 333 Della Franca v Lorenzato; Burwood Council v Lorenzato(No 2) [2022] NSWCA 53 Griffith v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 Huang v Muse Beauty Salon Waterloo Pty Ltd (No 5); Muse Beauty Salon Waterloo Pty Ltd v Huang (No 5) [2022] NSWDC 248 Hutley v Costco (No 2) [2021] NSWCA 335 McInnes v Rheem Australia Pty Ltd [2021] NSWCA 89 McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Oshlack v Richmond River Council [1998] HCA 11; (1988) 193 CLR 72 at 122 Real Estate Property Management Pty Ltd v WaterCorp Investments Pty Ltd [2018] NSWCA 194 Sze Tu v Lowe (No 2) [2015] NSWCA 91 United Resource Management Pty Ltd v Par Recycling Services Pty Ltd (No 2) [2024] NSWCA 29 Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 3) [2021] NSWCA 160 WIB Australia Pty Ltd v Bi [2023] NSWDC 571
Category:	Costs
Parties:	WIB Australia Pty Ltd (Plaintiff) Shainaz Bi (First Defendant) Shabnum Begum (Second Defendant)
Representation:	Counsel: M Daniels (Plaintiff) G Radcliff (First and Second Defendants) Solicitors: SMB Law (Plaintiff) Legacy Legal (First and Second Defendants)
File Number(s):	2022/00161536
Publication restriction:	No