Ingot Capital Investment & Ors v Macquarie Equity Capital Markets & Ors [No.7] [2008] NSWSC 199

Ingot Capital Investment & Ors v Macquarie Equity Capital Markets & Ors [No.7] [2008] NSWSC 199

Plaintiffs' failure to provide evidence capable of proving damages, despite clear warnings and their own submissions adopting the proper measure, amounted to relevant misconduct justifying indemnity costs from 1 January 2005. As to earlier Calderbank offers, indemnity costs should run from the date of reasonable offers not accepted. Access to security for costs was refused absent quantified orders and demonstrated need. NCRA, though in liquidation, was not entitled to indemnity from Macquarie as joinder met the threshold of reasonableness and the liquidator’s preferred approach contributed to additional litigation.

Parties
First Plaintiff: Ingot Capital Investments Pty Limited; Second Plaintiff: Stocks Convertible Limited (formerly AOIT Limited); Third Plaintiff: ASC Pty Limited; Fourth Plaintiff: Stocks Convertible Trust plc (formerly Australian Opportunities Investment Trust PLC); Fifth Plaintiff: Eastern States Securities Limited; Sixth Plaintiff: Ingot Capital Management Pty Limited; First Defendant: Macquarie Equity Capital Markets Limited; Second Defendant: Macquarie Equities Limited; Third Defendant: Macquarie Bank Limited; Fourth Defendant: Udayan Daniel Ghose; Fifth Defendant: Jonathan Paul Beach; Sixth Defendant: Azmin Firoz Daya; Seventh Defendant: Craig Deery; Eighth Defendant: Michael J Morrissey; Ninth Defendant: William Peck; Tenth Defendant: Paul Lauerence Williams; Eleventh Defendant: Peter Aroney; Twelfth Defendant: John Trowbridge Consulting Pty Limited; Thirteenth Defendant: Patrick Murray and the persons listed in Schedule "B" to the summons (PwC); Fourteenth Defendant: Andrew Mutton and the Persons in NSW Listed in Schedule "A" to the summons (Phillips Fox); 36th Cross Claimant: NCRA; Cross Defendant/defendant: Guy Carpenter Parties
Jurisdiction
Australia
Judgment Date
14 March 2008
Procedural Posture
Equity Commercial Proceedings With Cross Claims / Post Trial—costs Determination and Consequential Orders
Outcome
Plaintiffs to pay specified defendants' costs (with varying dates for indemnity costs); all interim applications for access to security for costs are dismissed; cross-claims and consequential orders as detailed; parties to confer on gross sum orders; costs applications adjourned for final orders and directions.
Legal Topics
Indemnity Costs, Security for Costs, Cross Claims, Joinder of Company in Liquidation, Proof of Damages, Proof of Causation
Costs Corporations Indemnity Costs Security for Costs Cross Claims Joinder of Company in Liquidation Proof of Damages Proof of Causation

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Parties

Ingot Capital Investments Pty Limited

First Plaintiff

Stocks Convertible Limited (formerly AOIT Limited)

Second Plaintiff

ASC Pty Limited

Third Plaintiff

Stocks Convertible Trust plc (formerly Australian Opportunities Investment Trust PLC)

Fourth Plaintiff

Eastern States Securities Limited

Fifth Plaintiff

Ingot Capital Management Pty Limited

Sixth Plaintiff

Macquarie Equity Capital Markets Limited

First Defendant

Macquarie Equities Limited

Second Defendant

Macquarie Bank Limited

Third Defendant

Udayan Daniel Ghose

Fourth Defendant

Jonathan Paul Beach

Fifth Defendant

Azmin Firoz Daya

Sixth Defendant

Craig Deery

Seventh Defendant

Michael J Morrissey

Eighth Defendant

William Peck

Ninth Defendant

Paul Lauerence Williams

Tenth Defendant

Peter Aroney

Eleventh Defendant

John Trowbridge Consulting Pty Limited

Twelfth Defendant

Patrick Murray and the persons listed in Schedule "B" to the summons (PwC)

Thirteenth Defendant

Andrew Mutton and the Persons in NSW Listed in Schedule "A" to the summons (Phillips Fox)

Fourteenth Defendant

NCRA

36th Cross Claimant

Guy Carpenter Parties

Cross Defendant/defendant

Procedural Posture

Equity Commercial Proceedings With Cross Claims / Post Trial—costs Determination and Consequential Orders

Legal Issues

  1. 1 Whether indemnity costs should be ordered against the plaintiffs
  2. 2 Whether any defendant should be permitted access to security for costs
  3. 3 Whether a company in liquidation joined as cross-defendant should be indemnified for all costs incurred by party seeking joinder

Ratio Decidendi

Plaintiffs' failure to provide evidence capable of proving damages, despite clear warnings and their own submissions adopting the proper measure, amounted to relevant misconduct justifying indemnity costs from 1 January 2005. As to earlier Calderbank offers, indemnity costs should run from the date of reasonable offers not accepted. Access to security for costs was refused absent quantified orders and demonstrated need. NCRA, though in liquidation, was not entitled to indemnity from Macquarie as joinder met the threshold of reasonableness and the liquidator’s preferred approach contributed to additional litigation.

Court Disposition

Plaintiffs to pay specified defendants' costs (with varying dates for indemnity costs); all interim applications for access to security for costs are dismissed; cross-claims and consequential orders as detailed; parties to confer on gross sum orders; costs applications adjourned for final orders and directions.

Orders

  • Plaintiffs to pay costs of specified defendants (party/party up to given dates, indemnity basis thereafter).
  • Interest on costs ordered per 'Lahoud formula'.