Windgap Foundation Ltd v Solomons [2018] NSWSC 809

Windgap Foundation Ltd v Solomons [2018] NSWSC 809

Ms Solomons' conduct in taking and disclosing Windgap's confidential client database was wrongful, and Windgap would inevitably have succeeded in obtaining protective relief. Windgap was justified in commencing proceedings and seeking ex parte relief without prior notice, and in requiring an independent IT expert. However, although Windgap was entitled to costs on the ordinary basis, the amount claimed appeared prima facie excessive when assessed against the proportionality requirement in s 60 of the Civil Procedure Act 2005 (NSW), so the Court would not simply make an ordinary costs order and leave the issue without further consideration.

Jurisdiction
Australia
Judgment Date
31 May 2018
Procedural Posture
Costs Dispute in Equity Proceedings Concerning Recovery and Protection of Confidential Information / After Final Orders Made by Consent; Determination of Costs Directions
Outcome
Windgap was held entitled to costs on the ordinary basis in principle, but the claimed costs and disbursements appeared prima facie excessive; the matter was to be relisted for further directions on the appropriate method of quantifying costs.
Legal Topics
['party/party Costs' 'interlocutory Proceedings' 'ex Parte Injunction' 'delivery Up' 'proportionality of Costs' 'confidential Client Database' 'former Employee']
['civil Procedure' 'costs' 'equity' 'confidential Information'] ['party/party Costs' 'interlocutory Proceedings' 'ex Parte Injunction' 'delivery Up' 'proportionality of Costs' 'confidential Client Database' 'former Employee']

Case Brief

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Procedural Posture

Costs Dispute in Equity Proceedings Concerning Recovery and Protection of Confidential Information / After Final Orders Made by Consent; Determination of Costs Directions

Legal Issues

  1. 1 ['Whether the plaintiff should recover its costs where final orders were made in its favour without contest by the defendant.' 'Whether the plaintiff was justified in commencing ex parte proceedings without first issuing a letter of demand.' 'Whether the costs and disbursements claimed by the plaintiff were proportionate to the importance and complexity of the matter.' "Whether quantification of the plaintiff's costs should be left to the ordinary assessment process or supervised by the Court."]

Ratio Decidendi

Ms Solomons' conduct in taking and disclosing Windgap's confidential client database was wrongful, and Windgap would inevitably have succeeded in obtaining protective relief. Windgap was justified in commencing proceedings and seeking ex parte relief without prior notice, and in requiring an independent IT expert. However, although Windgap was entitled to costs on the ordinary basis, the amount claimed appeared prima facie excessive when assessed against the proportionality requirement in s 60 of the Civil Procedure Act 2005 (NSW), so the Court would not simply make an ordinary costs order and leave the issue without further consideration.

Court Disposition

Windgap was held entitled to costs on the ordinary basis in principle, but the claimed costs and disbursements appeared prima facie excessive; the matter was to be relisted for further directions on the appropriate method of quantifying costs.

Orders

  • ['Reasons delivered on the costs dispute.' 'The parties were permitted to make an arrangement through the Associate to relist the matter for further directions at 9:30 AM on a suitable morning.']