In the matter of GPM Constructions Pty Ltd – Oreb v GPM Constructions Pty Ltd (No 2) [2020] NSWSC 1455

Supreme Court New South Wales

Medium Neutral Citation: In the matter of GPM Constructions Pty Ltd – Oreb v GPM Constructions Pty Ltd (No 2) [2020] NSWSC 1455 Hearing dates: On the papers Date of orders: 20 October 2020 Decision date: 20 October 2020 Jurisdiction: Equity Before: Emmett AJA Decision: Vary the order made on 26 August 2020 by substituting "the first and second defendants" for "the defendants" under the slip rule in Uniform Civil Procedure Rules 2005 (NSW) r 36.17 Catchwords: PROCEDURE — Judgments and orders — Amending, varying and setting aside — Accidental slip or omission — UCPR r 36.17 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 36.17 Cases Cited: In the matter of GPM Constructions Pty Ltd – Oreb v GPM Constructions Pty Ltd [2020] NSWSC 1127 Category: Procedural and other rulings Parties: Peter Oreb (First Plaintiff/First Cross-Defendant) Enter Building Group Pty Ltd (Second Plaintiff/Second Cross-Defendant) GPM Constructions Pty Ltd (First Defendant/First Cross-Claimant) Gregory Stockley (Second Defendant/Second Cross-Claimant) GPM Marine Constructions Pty Ltd (Third Defendant/Third Cross-Claimant) Representation: Counsel: R Glasson (Plaintiffs/Cross-Defendants) S Keizer (Defendants/Cross-Claimants)

Solicitors: Gillis Delaney Lawyers (Plaintiffs/Cross-Defendants) Hunt & Hunt Lawyers (Defendants/Cross-Claimants) File Number(s): 2019/346479

Judgment 1. On 26 August 2020, I published reasons for my conclusions on the question of the costs of the proceedings (the Costs Reasons). [1] Relevantly, I made the following order: "Order that the defendants pay 85% of the plaintiffs' costs of the originating process and the cross-claim." 1. The parties agree that, since the plaintiffs did not seek a costs order against the third defendant, the reference should have been to the first and second defendants only. Accordingly, I propose to vary the order by substituting "the first and second defendants" for "the defendants" pursuant to the Uniform Civil Procedure Rules 2005 (NSW) r 36.17 (UCPR). However, the defendants also seek a further variation to amend the reference to "costs of the originating process" to "costs of the amended originating process". 2. The proceedings were commenced by originating process filed on 4 November 2019. The principal relief sought was access to company records. An amended originating process was filed on 15 June 2020 pursuant to the grant of leave on 12 June 2020. A new claim was included relating to "Outstanding Retentions" but no changes were made to the categories of company records to which access was sought. A further amended originating process filed on 24 June 2020, the second day of the hearing, merely added GPM Marine as a defendant, given that the proceedings involved issues as to the construction of a deed to which GPM Marine was a party. Otherwise, no substantive change was made by the further amended originating process. The hearing before me commenced on 23 June 2020 on the basis of the amended originating process. 3. On 26 August 2020, following publication of the Costs Reasons, Hunt & Hunt, who were acting for the defendants, wrote to Gillis Delaney, who were acting for the plaintiffs. Hunt & Hunt proposed that the order be varied so as to be limited to costs of the amended originating process, because, they said, the Costs Reasons referred only to the amended originating process and the matters determined pursuant to that pleading. Hunt & Hunt also asserted that the amended originating process differed substantially from the originating process in that an application for a freezing order by the plaintiffs was abandoned shortly before the hearing and the categories of company records that were sought were considerably reduced in the amended originating process. 4. The width of the dispute between the parties had certainly been narrowed significantly by the time the matter came on for hearing. [2] In particular, there was a substantial reduction in the categories of company records to which the plaintiffs sought access. [3] A much narrower set of issues was therefore before me for determination at the hearing fixed for 23 and 24 June 2020 than was raised by the originating process filed on 4 November 2019. 5. I ultimately concluded that the plaintiffs were significantly more successful than the defendants. [4] The defendants contend that my reasons make it clear that that conclusion was reached with respect to the issues that were still live before me at the hearing and not with respect to all issues that had been in dispute between the parties. Hence, the defendants contend, they are entitled to the further variation now sought. 6. Gillis Delaney did not agree with that proposal for the reasons set out at length in their response of 27 August 2020 to Hunt & Hunt's proposal. In that letter, Gillis Delaney pointed out that no submissions had been put forward on behalf of the defendants to the effect that costs should only be awarded to the plaintiffs from the date of the amended originating process. They asserted that the Costs Reasons made it clear that the costs order applied to the whole of the proceedings including costs of and incidental to the proceedings, such as work preparatory to and relevant to correspondence passing between the parties prior to the commencement of the proceedings. Gillis Delaney also disputed the assertion by Hunt & Hunt that the amended originating process differed substantially from the originating process. 7. In the Costs Reasons, I indicated that the bulk of the dispute, in terms of time and effort, concerned access to company records and that the parties had taken me, at considerable length, through detailed correspondence that passed between the solicitors prior to the commencement of the proceedings. Clearly, the bulk of the costs incurred in the proceedings related to the question of access to company records, which formed the principal issue in the originating process, and which flowed through to the amended originating process. My consideration of the question of costs was based on the categories of documents sought in the originating process. 8. The effect of the costs order was that the plaintiffs should be entitled to recover 85% of their costs of the whole proceedings on the ordinary basis and not 85% of a limited portion of the proceedings. That was my intention. I intended to indicate that I considered that the plaintiffs had been more successful than the defendants in relation to the whole of the proceedings. That is to say, the plaintiffs were substantially successful overall on the issues concerning access to company records. 9. It is relevant that the defendants had not made any submission to the effect now proposed, namely, that costs should be further limited. In any event, had the matter being raised, my conclusion would be the same. The order should not be limited in the way now sought by the defendants and I do not propose to vary the costs order further.