Wheeler & Ors t/as PricewaterhouseCoopers v Aoyin Group Ltd (No 2) [2021] NSWSC 433

Supreme Court New South Wales

Medium Neutral Citation: Wheeler & Ors t/as PricewaterhouseCoopers v Aoyin Group Ltd (No 2) [2021] NSWSC 433 Hearing dates: On the papers Date of orders: 28 April 2021 Decision date: 28 April 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Costs of plaintiffs'/cross defendants' notice of motion of 10 February 2021 be costs in the cause Catchwords: COSTS – dispute about waiver of privilege – plaintiffs/cross defendants had partial success – scope of application refined during submissions Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Wheeler & Ors t/as PricewaterhouseCoopers v Aoyin Group Ltd [2021] NSWSC 363 Category: Costs Parties: Andrew Wheeler & Ors t/as PricewaterhouseCoopers (Plaintiff) Aoyin Group Limited (Defendant) Representation: Counsel: S Nixon SC with E Bathurst (Plaintiff) J Braithwaite (Defendant)

Solicitors: Ashurst Lawyers (Plaintiff) Mills Oakley (Defendant) File Number(s): 2017/252324

Judgment 1. I gave judgment in this matter on 9 April 2021: Wheeler & Ors t/as PricewaterhouseCoopers v Aoyin Group Ltd. [1] I shall use the same abbreviations here. 2. I was dealing with a dispute as to whether Aoyin had waived privilege in relation to communications it received between October 2014 and September 2015 from its then solicitors. 3. On the argument before me, PwC had partial success. 4. I expressed the preliminary view that PwC's costs of the argument should be its costs in the cause. 5. I have now received submissions as to whether that preliminary view was correct. 6. I am persuaded that it was not. 7. At [11] of the judgment, I recorded that some measure of agreement had been reached in relation to the documents sought by PwC. 8. PwC originally sought categories which would have required production of 205 documents. Following exchange of submissions, PwC refined the scope of the production sought, and proposed more refined categories that called for production of 68 documents. 9. On the day of the hearing before me, Aoyin agreed to produce 13 of those documents. 10. PwC had partial success in relation to the remaining documents, although that success yielded only a further two documents. 11. In those circumstances, I am persuaded that the appropriate order to make in relation to PwC's motion is that the costs of that motion be costs in the cause. 12. I order that the costs of the plaintiffs'/cross-defendants' Notice of Motion filed on 10 February 2021 be costs in the cause.