Globe Capital Administration Pty Ltd v Cecil Developments Pty Ltd atf the Cecil Developments Unit Trust (Receivers and Managers appointed) (No. 2) [2023] NSWSC 1220

Globe Capital Administration Pty Ltd v Cecil Developments Pty Ltd atf the Cecil Developments Unit Trust (Receivers and Managers appointed) (No. 2) [2023] NSWSC 1220

The applicant was substantially but not wholly successful in its application for preliminary discovery; both parties contributed to procedural inefficiencies and delay, but the respondents' active opposition and delay justified a costs order in the applicant’s favour, limited to two thirds of its costs, offset by a requirement that the applicant pay the respondents' reasonable costs of compliance with the discovery order.

Parties
Applicant: Globe Capital Administration Pty Ltd ACN 608 004 299; First Respondent: Cecil Developments Pty Limited atf the Cecil Developments Unit Trust (Receivers and Managers appointed) ACN 619 221 644; Second Respondent: Gemi 168 Pty Ltd ACN 638 719 641; Third Respondent: David Hurst in his capacity as Receiver and Manager over properties owned by Cecil Developments Pty Ltd; Fourth Respondent: David Sampson in his capacity as Receiver and Manager over properties owned by Cecil Developments Pty Ltd
Jurisdiction
Australia
Judgment Date
13 October 2023
Procedural Posture
Preliminary Discovery Application / Costs Determination After Preliminary Discovery Orders
Outcome
Respondents ordered to pay two thirds of the applicant's costs of the application for preliminary discovery, with the applicant to pay respondents' reasonable costs of producing the documents, subject to set-off and a right to claim those costs back in any future substantive proceedings based on the discovery.
Legal Topics
Costs, Preliminary Discovery, Proportionality, Judicial Cooperation
Equity Civil Procedure Costs Preliminary Discovery Proportionality Judicial Cooperation

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Parties

Globe Capital Administration Pty Ltd ACN 608 004 299

Applicant

Cecil Developments Pty Limited atf the Cecil Developments Unit Trust (Receivers and Managers appointed) ACN 619 221 644

First Respondent

Gemi 168 Pty Ltd ACN 638 719 641

Second Respondent

David Hurst in his capacity as Receiver and Manager over properties owned by Cecil Developments Pty Ltd

Third Respondent

David Sampson in his capacity as Receiver and Manager over properties owned by Cecil Developments Pty Ltd

Fourth Respondent

Procedural Posture

Preliminary Discovery Application / Costs Determination After Preliminary Discovery Orders

Legal Issues

  1. 1 Whether costs should follow the event in preliminary discovery proceedings
  2. 2 Whether respondents should be compensated for costs of complying with preliminary discovery
  3. 3 Application of proportionality and cooperation in litigation conduct

Ratio Decidendi

The applicant was substantially but not wholly successful in its application for preliminary discovery; both parties contributed to procedural inefficiencies and delay, but the respondents' active opposition and delay justified a costs order in the applicant’s favour, limited to two thirds of its costs, offset by a requirement that the applicant pay the respondents' reasonable costs of compliance with the discovery order.

Court Disposition

Respondents ordered to pay two thirds of the applicant's costs of the application for preliminary discovery, with the applicant to pay respondents' reasonable costs of producing the documents, subject to set-off and a right to claim those costs back in any future substantive proceedings based on the discovery.

Orders

  • Respondents to pay two thirds of the applicant's costs of the proceedings subject to order (2).
  • Applicant to pay respondents' reasonable costs of complying with preliminary discovery orders.