Idoport Pty Limited and Anor v National Australia Bank Limited & Ors, National Australia Bank Limited v OAMPS Limited and Ors [2004] NSWSC 695

Parties

Procedural Posture

Application for Equitable Discovery in Aid of Prospective Third Party Costs Application / Post Judgment, Ancillary Application

Legal Issues

1. 1 Whether orders for equitable discovery should be made in aid of prospective third party costs applications under Supreme Court Rule Part 52A rule 4(5)(d)
2. 2 Whether commercial funding of litigation by third parties, without an assumption of liability for adverse costs, may be an abuse of court process
3. 3 Whether piercing the corporate veil is available to expose funders to costs risks

Ratio Decidendi

Equitable discovery orders are to be made (save that questions regarding Efficiency's assets are disallowed) as the applicants have demonstrated need and an arguable case that the staged and complex litigation funding as a commercial venture for reward may, depending on the facts uncovered, amount to an abuse of process under Pt 52A r 4(5)(d), such that a third party costs order may be available. The categories of abuse of process are not closed and the applicants require further information to determine the involvement and possible liability of the funders and associated parties. The orders are appropriate for the administration of justice.

Court Disposition

Orders for equitable discovery made as sought save as to identification of assets of Efficiency Investment B.V.

Orders

• Equitable discovery to be provided by Idoport, Negubo, OAMPS, AIIL, and Mr Porter regarding identified topics;
• Questions about Efficiency's assets (notice of motion part 1(c)-(e)) disallowed.