Australia Eastern Railroad Pty Ltd v Macquarie Specialised Asset Management Ltd (No 2) [2020] NSWSC 963

Australia Eastern Railroad Pty Ltd v Macquarie Specialised Asset Management Ltd (No 2) [2020] NSWSC 963

In the circumstances of this case, where the defendants acted reasonably and proposed an alternative course to opposed discovery, and given the complexity and compliance burden, the proper order is that there be no order as to the costs of the plaintiff's summons, with the intent that each party should bear its own costs of the preliminary discovery application, subject to future recovery depending on the outcome of any substantive proceedings.

Parties
Plaintiff: Australia Eastern Railroad Pty Ltd; First Defendant: Macquarie Specialised Asset Management Ltd as trustee for the MAIF Investment Trust; Second Defendant: Macquarie Australian Infrastructure Management Ltd as trustee for the Macquarie Australian Infrastructure Trust 1; Third Defendant: Macquarie Australian Infrastructure Management 1 Limited as trustee for the Scissor Holdings Trust; Fourth Defendant: Macquarie Australian Infrastructure Management 1 Ltd as trustee for the PGGM Ibis LP Trust; Fifth Defendant: Scissor Holdings Pty Ltd; Sixth Defendant: Macquarie Corporation Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
28 July 2020
Procedural Posture
Preliminary Discovery Interlocutory Application / Costs Determination After Preliminary Discovery Granted
Outcome
No order as to costs; each party to pay own costs of the preliminary discovery application. Plaintiff to pay reasonable costs of compliance with order for discovery. Liberty to apply granted. Future entitlement to recover costs in substantive proceedings preserved.
Legal Topics
Costs, Preliminary Discovery
Civil Procedure Equity Costs Preliminary Discovery

Case Brief

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Parties

Australia Eastern Railroad Pty Ltd

Plaintiff

Macquarie Specialised Asset Management Ltd as trustee for the MAIF Investment Trust

First Defendant

Macquarie Australian Infrastructure Management Ltd as trustee for the Macquarie Australian Infrastructure Trust 1

Second Defendant

Macquarie Australian Infrastructure Management 1 Limited as trustee for the Scissor Holdings Trust

Third Defendant

Macquarie Australian Infrastructure Management 1 Ltd as trustee for the PGGM Ibis LP Trust

Fourth Defendant

Scissor Holdings Pty Ltd

Fifth Defendant

Macquarie Corporation Holdings Pty Ltd

Sixth Defendant

Procedural Posture

Preliminary Discovery Interlocutory Application / Costs Determination After Preliminary Discovery Granted

Legal Issues

  1. 1 Appropriate costs order for a preliminary discovery application under UCPR r 5.3 where the respondent acted reasonably and the process is complex and costly.

Ratio Decidendi

In the circumstances of this case, where the defendants acted reasonably and proposed an alternative course to opposed discovery, and given the complexity and compliance burden, the proper order is that there be no order as to the costs of the plaintiff's summons, with the intent that each party should bear its own costs of the preliminary discovery application, subject to future recovery depending on the outcome of any substantive proceedings.

Court Disposition

No order as to costs; each party to pay own costs of the preliminary discovery application. Plaintiff to pay reasonable costs of compliance with order for discovery. Liberty to apply granted. Future entitlement to recover costs in substantive proceedings preserved.

Orders

  • By 17 August 2020, defendants to serve a verified list of documents in accordance with UCPR r 21.3 responding to Annexure A.
  • By 24 August 2020, defendants to make documents and things available for inspection.