Reliance Financial Services Pty Ltd v Altair Investments Pty Ltd [2020] NSWSC 1138

Supreme Court New South Wales

Medium Neutral Citation: Reliance Financial Services Pty Ltd v Altair Investments Pty Ltd [2020] NSWSC 1138 Hearing dates: 9 July, 7 August 2020 and then on the papers Date of orders: 26 August 2020 Decision date: 26 August 2020 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Indemnity costs ordered; gross sum costs order made Catchwords: COSTS — Party/Party — Bases of quantification — Indemnity basis — Gross sum costs order — Sufficiency of evidence to enable fair determination — No issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Bechara trading as Bechara & Company v Bates [2016] NSWCA 294 Calderbank v Calderbank [1975] 3 All ER 333 Fiduciary Ltd v Morningstar (2002) 55 NSWLR 1; [2002] NSWSC 432 Category: Costs Parties: Reliance Financial Services Pty Ltd ACN 146 317 919 (First Plaintiff) Nancy Morvillo (Second Plaintiff) Marginata Securities Pty Ltd (Third Plaintiff) Accolade Advisory Pty Ltd (Fourth Plaintiff)

Altair Investments Pty Ltd (Eighth Defendant) Xi He (Ninth Defendant) Representation: Counsel:

D Allen (Plaintiffs) M Karam (Eighth and Ninth Defendants)

Solicitors:

McEvoy Legal (Plaintiffs) Gilchrist Connell (Eighth and Ninth Defendants) File Number(s): 2019/372019 Publication restriction: No

Judgment 1. This judgment resolves the question of costs in relation to two applications brought in the context of much larger proceedings. 2. The four plaintiffs ("Reliance") sue a number of defendants, including the eighth and ninth defendants (the "Altair Parties"). By notice of motion dated 21 May 2020, the Altair Parties brought an application for summary dismissal of Reliance's claim against them (the "Altair Motion"). In response, by notice of motion dated 29 May 2020, Reliance brought an application for summary judgment against the Altair Parties (the "Reliance Motion"). 3. The Altair Parties succeeded with the result that Reliance was ordered to pay the Altair Parties' costs of both motions. 4. The Altair Parties have applied for orders that their costs of the motions should be paid forthwith on the indemnity basis and for a gross sum costs order. 5. The Court's conclusions are: 1. There was never any proper basis for the Reliance Motion such that the Altair Parties are entitled to their costs of that motion on the indemnity basis. 2. The Altair Parties are entitled to their costs of the Altair Motion on the ordinary basis up to and including 16 June 2020 and thereafter on the indemnity basis because Reliance unreasonably failed to accept the Altair Parties' offer to settle the motions on terms substantially identical to the result which the Altair Parties obtained. 3. The Altair Parties are entitled to a gross sum costs order in the amount of $35,800 payable forthwith.