Galati v Deans (No 2) [2019] NSWSC 1714

Galati v Deans (No 2) [2019] NSWSC 1714

Because the cross-claimants succeeded in establishing implied waiver of privilege in respect of some disputed documents but failed to obtain the full access sought, and because their conduct in pressing part of the motion was not so unreasonable as to justify EJC's requested forthwith costs order, the fairer course was to reserve the costs of and incidental to the motion for determination with the final costs orders in the substantive dispute between the parties.

Jurisdiction
Australia
Judgment Date
04 December 2019
Procedural Posture
Costs Application in Equity Proceedings / Determination on the Papers of Costs of Notice of Motion Filed 8 October 2019
Outcome
Costs reserved.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'costs Discretion' 'access to Documents Produced on Subpoena' 'implied Waiver of Legal Professional Privilege' 'reserved Costs']
['civil Procedure' 'costs' 'legal Professional Privilege'] ['party/party Costs' 'costs Follow the Event' 'costs Discretion' 'access to Documents Produced on Subpoena' 'implied Waiver of Legal Professional Privilege' 'reserved Costs']

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Procedural Posture

Costs Application in Equity Proceedings / Determination on the Papers of Costs of Notice of Motion Filed 8 October 2019

Legal Issues

  1. 1 ["Whether the cross-claimants should pay EJC's costs forthwith in relation to substantiating privilege claims and the motion concerning access to subpoenaed documents." "Whether the cross-claimants' conduct in pressing part of the relief sought in the motion was so unreasonable as to warrant the costs order sought by EJC." 'How costs should be dealt with where there was mixed success on the implied waiver of privilege issue.']

Ratio Decidendi

Because the cross-claimants succeeded in establishing implied waiver of privilege in respect of some disputed documents but failed to obtain the full access sought, and because their conduct in pressing part of the motion was not so unreasonable as to justify EJC's requested forthwith costs order, the fairer course was to reserve the costs of and incidental to the motion for determination with the final costs orders in the substantive dispute between the parties.

Court Disposition

Costs reserved.

Orders

  • ['Order that the costs of and incidental to the motion filed 8 October 2019 by the first and second defendants/cross-claimants be reserved, to be determined as part of the costs orders to be made on the final determination of the substantive dispute between the parties in the proceedings.']