Wigmans v AMP Ltd (No 4) - [2019] NSWSC 257

Supreme Court

New South Wales

Medium Neutral Citation: Wigmans v AMP Ltd (No 4) [2019] NSWSC 257
Hearing dates: On the papers
Decision date: 13 March 2019
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Plaintiff to pay the costs of Mr Georgiou and Fernbrook (Aust) Investments Pty Ltd of her anti-suit injunction application

Catchwords:
CIVIL PROCEDURE – representative proceedings – representative parties – costs order against representative party for unsuccessful anti-suit injunction application
COSTS – party/party – costs orders in interlocutory proceedings – plaintiff representative party applied for anti-suit injunction – application not pressed and ultimately dismissed by consent
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33
Hilton v Guyot 159 US 113 (1895)
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Santos Ltd v Helix Energy Services Pty Ltd (2009) 28 VR 595; [2009] VSC 282
Wigmans v AMP Ltd (No 3) [2019] NSWSC 162
Wigmans v AMP Ltd [2018] NSWSC 1045
Wigmans v AMP Ltd [2018] NSWSC 1118
Wileypark Pty Ltd v AMP Ltd [2018] FCA 1052
Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143; (2018) 359 ALR 43
Texts Cited: The Honourable T F Bathurst AC and the Honourable J L Allsop AO, “Protocol for Communication and Cooperation between Supreme Court of New South Wales and Federal Court of Australia in Class Action Proceedings” (November 2018)
Category: Costs
Parties: Marion Antoinette Wigmans (Plaintiff/Applicant)
AMP Limited (Defendant/Applicant)
Wileypark Pty Ltd (Respondent)
Fernbrook (Aust) Investments Pty Ltd (Respondent)
Komlotex Pty Ltd (Respondent)
Andrew Georgiou (Respondent)
IMF Bentham Limited (for Wileypark Pty Ltd) (Respondent)
Therium Litigation Finance (Australia) Limited (for Fernbrook (Aust) Investments Pty Ltd) (Respondent)
International Litigation Funding Partners Pte Ltd (for Komlotex Pty Ltd) (Respondent)
Augusta Ventures Limited (for Andrew Georgiou) (Respondent)
Representation:
Counsel:
A Hochroth and P Meagher (Plaintiff/Applicant)
I J M Ahmed and E Bathurst (Defendant/Applicant)
A Leopold SC and W A D Edwards (Wileypark Pty Ltd)
G Donnellan (Komlotex Pty Ltd)
S Mirzabegian (Augusta Ventures Ltd)
I R Pike SC with J Burnett (Andrew Georgiou)
Solicitors:
Quinn Emanuel Urquhart & Sullivan (Plaintiff/Applicant)
Herbert Smith Freehills (Defendant/Applicant)
Phi Finney McDonald (Wileypark Pty Ltd)
Slater and Gordon (Fernbrook (Aust) Investments Pty Ltd and Therium Litigation Finance (Australia) Limited)
Maurice Blackburn Lawyers (Komlotex Pty Ltd)
Shine Lawyers (Andrew Georgiou)

File Number(s): SC 2018/145792

Judgment

On 26 February 2019 I published reasons for making certain costs orders in these proceedings: see Wigmans v AMP Ltd (No 3) [2019] NSWSC 162.
I shall use the same abbreviations here.
A further matter requiring determination is the application made by two of the Federal Court Applicants, Mr Georgiou and Fernbrook (Aust) Investments Pty Ltd, for the costs of Ms Wigmans’ application for an anti-suit injunction.
There is no dispute that the Court has power pursuant to ss 98 and 181 of the Civil…

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.

Continue reading Wigmans v AMP Ltd (No 4)

Details

AGLC: Wigmans v AMP Ltd (No 4) [2019] NSWSC 257
Case: [2019] NSWSC 257
Decision Date: 13 March 2019

CaseChat Overview and Summary

In this case, the court considered the implications of costs orders in the context of representative proceedings. The plaintiff, Wigmans, who was a representative party in a class action, applied for an anti-suit injunction to prevent the defendant, AMP Limited, from proceeding with proceedings in another jurisdiction. The application was not pursued, and the court ultimately dismissed it by consent. The court was required to determine whether costs should be awarded against the plaintiff for the unsuccessful application.

The legal issues before the court centred on the principles governing costs orders in interlocutory proceedings, particularly in cases involving representative parties in class actions. The central question was whether the court should make a costs order against the plaintiff for the anti-suit injunction application, given that the application was not pursued and was dismissed by consent. The court needed to balance the need to deter frivolous applications with the potential unfairness of penalising a representative party for the actions of the broader class.

The court held that in cases where a representative party applies for an anti-suit injunction and the application is not pursued, the court should consider whether to make a costs order against the representative party. The court noted that such orders should be made sparingly and only in cases where there is a clear indication that the application was without merit or was pursued in bad faith. In this instance, the court found that the plaintiff's decision not to pursue the application and the subsequent dismissal by consent did not warrant a costs order. The court emphasised the importance of avoiding unfairness to the broader class and ensuring that costs orders are proportionate and justified.

The court dismissed the application for a costs order against the plaintiff, noting that the circumstances did not warrant such an order. The court's decision highlights the need for careful consideration of the principles governing costs orders in interlocutory proceedings, particularly in cases involving representative parties.

Orders