ALYK (H.K.) Limited v Caprock Commodities Trading Pty Limited and China Construction Bank Corporation [2016] NSWSC 901

ALYK (H.K.) Limited v Caprock Commodities Trading Pty Limited and China Construction Bank Corporation [2016] NSWSC 901

Caprock was responsible for ALYK incurring substantial disclosure and subpoena costs before 28 April 2016 because Caprock initially denied that the Fund had assets available to meet the award and only later filed evidence acknowledging their value. Fairness therefore required Caprock to pay ALYK's costs for the specified pre-28 April 2016 period and subpoena return dates. There was no basis to order ALYK to pay Caprock's costs of the 2 June 2016 hearing because ALYK had a significant degree of success, including establishing entitlement to enforce against Caprock and to recover $538,261, while Caprock's success on amount reflected a different analysis from that for which it had contended.

Jurisdiction
Australia
Judgment Date
29 June 2016
Procedural Posture
Costs Application in Equity Corporations List / Costs Following Judgment Granting Leave to Enforce an Arbitration Award
Outcome
Previous costs orders affirmed; First Defendant ordered to pay specified Plaintiff's costs; otherwise no order as to costs on and from 28 April 2016.
Legal Topics
['costs Discretion' 'costs Follow the Event' 'disclosure Costs' 'subpoena Return Dates' 'enforcement of Arbitration Award' 'limitation of Liability Clause' 'trust Assets']
['civil Procedure' 'costs' 'international Arbitration' 'corporations and Trusts'] ['costs Discretion' 'costs Follow the Event' 'disclosure Costs' 'subpoena Return Dates' 'enforcement of Arbitration Award' 'limitation of Liability Clause' 'trust Assets']

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Procedural Posture

Costs Application in Equity Corporations List / Costs Following Judgment Granting Leave to Enforce an Arbitration Award

Legal Issues

  1. 1 ["Whether Caprock should pay ALYK's costs from 25 July 2015 to 28 April 2016 incurred in seeking to establish the value of the Fund's assets." "Whether Caprock should pay ALYK's costs relating to the return dates of subpoenas issued on 18 March 2016." 'Whether Caprock should receive its costs of and incidental to the hearing on 2 June 2016 because of its success on the limitation of liability issue.' 'Whether there should be no order as to costs on and from 28 April 2016.']

Ratio Decidendi

Caprock was responsible for ALYK incurring substantial disclosure and subpoena costs before 28 April 2016 because Caprock initially denied that the Fund had assets available to meet the award and only later filed evidence acknowledging their value. Fairness therefore required Caprock to pay ALYK's costs for the specified pre-28 April 2016 period and subpoena return dates. There was no basis to order ALYK to pay Caprock's costs of the 2 June 2016 hearing because ALYK had a significant degree of success, including establishing entitlement to enforce against Caprock and to recover $538,261, while Caprock's success on amount reflected a different analysis from that for which it had contended.

Court Disposition

Previous costs orders affirmed; First Defendant ordered to pay specified Plaintiff's costs; otherwise no order as to costs on and from 28 April 2016.

Orders

  • ['Previous costs orders made by the Court in the proceedings are affirmed.' "The First Defendant otherwise pay the Plaintiff's costs, as agreed or as assessed, from 25 July 2015 to 28 April 2016." "The First Defendant otherwise pay the Plaintiff's costs, as agreed or as assessed, of the return dates of the subpoenas...