FEDERAL COURT OF AUSTRALIA White (Trustee) v MWL Financial Group Pty Ltd, in the matter of MWL Financial Group Pty Ltd (No 2) [2019] FCA 364 File number: VID 636 of 2018 Judge: DAVIES J Date of judgment: 13 March 2019 Catchwords: COSTS – where applicants granted leave to bring derivative action under s 237 of the Corporations Act 2001 (Cth) – whether applicants' costs be costs in the cause of the derivative proceedings Legislation: Corporations Act 2001 (Cth) Cases cited: Maher v Honeysett & Maher Electrical Contractors [2005] NSWSC 859 Re Jimmy's Recipe Proprietary Limited [2018] NSWSC 1331 Date of hearing: 13 March 2019 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 5 Counsel for the Applicants: Mr J Moore QC Solicitor for the Applicants: Mills Oakley Counsel for the Respondents: Mr E Batrouney Solicitor for the Respondents: Hall & Wilcox ORDERS VID 636 of 2018 BETWEEN: JONATHAN FRASER WHITE AND INGRID CECILE ELKE WHITE (AS TRUSTEES OF THE WHITE SUPER FUND ABN 85 651 451 098) First Applicant G P LOMAX PTY LIMITED (ACN 135 543 627) (AS TRUSTEE FOR THE GREG P LOMAX LIMITED STAFF SUPERANNUATION FUND ABN 98 118 656 074) Second Applicant KATHERINE APPLEBY (and others named in the Schedule) Third Applicant AND: MWL FINANCIAL GROUP PTY LTD (ACN 145 576 058) First Respondent FOCUS MW LOMAX AUSTRALIA LLC Second Respondent JUDGE: DAVIES J DATE OF ORDER: 13 MARCH 2019 Upon the undertaking to the Court of the first to fifth, seventh to thirteenth, sixteenth and seventeenth applicants, that they will pay and bear and indemnify the first respondent against all costs, charges and expenses of and incidental to the bringing of the proceeding brought by them pursuant to Order 1 below, except to such extent, if any, as the Court may in future otherwise direct or allow. THE COURT ORDERS THAT: 1. The first to fifth, seventh to thirteenth, sixteenth and seventeenth applicants have leave to bring a proceeding on behalf of the first respondent substantially in the form of the draft statement of claim handed up to the Court at the hearing of the application on 31 October 2018. 2. The applicants' costs of this application be the costs of MWL Financial Group Pty Ltd in the proceeding brought pursuant to Order 1 above. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. EX TEMPORE REASONS FOR JUDGMENT (Revised from transcript) DAVIES J: 1 On 18 December 2018 I delivered judgment granting the applicants leave to bring derivative proceedings against the respondents pursuant to an application under s 237 of the Corporations Act 2001 (Cth). The applicants now seek the costs of their application. 2 Although the grant of relief on a derivative action application is in the nature of final not interlocutory relief, the weight of authority on the appropriate order as to costs is that the successful applicant's costs should be costs in the proceedings in respect of which leave is granted, akin to the usual order upon the grant of an interlocutory injunction: see Maher v Honeysett & Maher Electrical Contractors [2005] NSWSC 859 ("Maher") which courts in other jurisdictions, including the Federal Court, have applied. 3 Senior counsel for the applicants, nonetheless, urged the Court to follow the recent decision of Brereton J in Re Jimmy's Recipe Proprietary Limited [2018] NSWSC 1331 ("Jimmy's Recipe"), in which his Honour made a costs order in favour of the applicant. Brereton J reasoned that the plaintiff, having succeeded on the application over opposition, was entitled to costs against the defendants, although his Honour noted at [35] that his mind had "wandered to some extent between whether that should be contingent on the successful outcome of the ultimate proceedings or not". His Honour considered that because the nature of the proceedings was final, not interlocutory, a final costs order should be made and not left to the judge determining the derivative proceedings brought pursuant to leave. His Honour did not refer to his earlier decision in Maher or to other authorities which have applied it. Brereton J also placed weight on the conduct of the respondents in opposing the grant of leave, noting that had leave not been opposed it would have been dealt with as a short matter without requiring a two day hearing at a substantially greater expense. His Honour said at [36] it was not to the point that the plaintiff would have had to seek leave anyway but "[t]he fact is that when parties elect to oppose applications though they would have had to be made in any event, they thereby elect to expose themselves to the applicant's costs of making the application". Earlier, his Honour, amongst the reasons why he considered that it was desirable that the costs of the leave proceedings be finalised by the judge who hears those proceedings, stated it was important that parties not be encouraged to think that a proceeding under s 237 is an opportunity for those who oppose it to have a "free kick", for want of a better term, at the plaintiff's case. 4 In the present matter, senior counsel for the applicants submitted that the respondents had attempted a free kick at the applicants' case through their opposition to the grant of leave on the basis, amongst other things, of contesting the bona fides of the applicants in bringing their application when the Court was satisfied that the applicants were acting in good faith. 5 In any case, an award of costs is at the discretion of the Court and will depend upon the particular facts and circumstances of the case. In some cases it may be appropriate, as his Honour considered in Jimmy's Recipe, to make an order that the applicants' costs of the leave application be paid by the respondents. In the present case, I am not persuaded to depart from the usual order that is adopted in leave applications, that is, that the costs be costs in the cause of the derivative action commenced with leave. Although the respondents opposed the application, it could not be said, in my view, that the nature of the opposition was such that the respondents were having a "free kick" at the applicants' case. True it is that the respondents were unsuccessful in their opposition but I would not regard the opposition as wholly unmeritorious and, in the circumstances, the appropriate order is, in my view, that the costs of the application should follow the result of the derivative action. For those reasons, I will make the order as sought by the second respondent. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate: Dated: 15 March 2019 SCHEDULE OF PARTIES VID 636 of 2018 Applicants Fourth Applicant: COMPASS SUPERANNUATION PTY LTD (ACN 132 383 807) (AS TRUSTEE OF THE J AND F EAST SUPERANNUATION FUND ABN 29 195 743 178) Fifth Applicant: ELLIE SUPER PTY LTD (ACN 131 284 289) (AS TRUSTEE FOR THE ELLIE SUPERANNUATION FUND ABN 12 121 338 569) Sixth Applicant: BAGETON NOMINEES PTY LTD (ACN 005 751 717) (AS TRUSTEE OF THE KUCHARSKI FAMILY TRUST ABN 87 742 252 075) Seventh Applicant: DAILY CONSULTING PTY LTD (ACN 152 456 007) (AS TRUSTEE FOR THE LSD SUPER FUND ABN 46 436 838 982) Eighth Applicant: NATIONAL RISK MANAGEMENT SERVICES PTY LTD (ACN 135 543 627) (AS TRUSTEE OF THE MAIKOUSIS INVESTMENT TRUST ABN 43 668 692 089) Ninth Applicant: BILLY RAY VALENTINE (ACN 615 990 666) (AS TRUSTEES FOR TOSIN SUPER ABN 54 680 681 872) Tenth Applicant: JON WHITE PTY LTD (ACN 077 917 321) (AS TRUSTEE OF THE WHITE INVESTMENT FUND ABN 91 649 846 979) Eleventh Applicant: MAREE GOULDING PTY LTD (ACN 601 664 484) (AS TRUSTEE OF THE MAREE GOULDING SUPERANNUATION FUND ABN 72 699 377 536) Twelfth Applicant: KATAPPLE PTY LTD (ACN 601 664 537) (AS TRUSTEE OF THE KATAPPLE SUPERANNUATION FUND ABN 65 891 998 458) Thirteenth Applicant: MAREE ANN GOULDING Fourteenth Applicant: MALILO PTY LTD (ACN 091 931 985) (AS TRUSTEE OF THE ROCKEAGLE SUPERANNUATION FUND ABN 90 653 629 38) Fifteenth Applicant: MALA WEINGARTEN Sixteenth Applicant: LOUIE KORTESIS AND ANNA TANYA KORTESIS (IN THEIR CAPACITY AS TRUSTEES OF ZEST ACCOUNTING SUPERANNUATION FUND ABN 94 389 095 438) Seventeenth Applicant: LTAC HOLDINGS PTY LTD (ACN 164 513 213) (AS TRUSTEE OF THE ZEST ACCOUNTING GROUP TRUST ABN 88 431 433 080)