DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258 Hearing dates: On the papers Date of orders: 13 December 2022 Decision date: 13 December 2022 Before: Leeming JA; Kirk JA; Basten AJA at [1] Decision: (1) Vary order 3 made by this Court on 26 August 2022, with effect from that date, to read: "In lieu thereof, judgment against each of Mr Potts and Mr Abboud in the amount of $15,541,835.16, to take effect from 7 October 2021, such liability to be joint and several." (2) In proceeding 2017/81927, the plaintiff, National Australia Bank Ltd ("NAB") and HSBC Bank Ltd ("HSBC") are to pay 50% of the costs of the first and second defendants of the proceedings at first instance (including their costs of the cross-claims), such liability to be joint and several. For the avoidance of doubt, order 9 made in proceeding 2017/81927 by Ball J on 11 February 2022 (with respect to interest) applies to this order. (3) Any liability of Mr Abboud to DSHE Holdings Ltd ("DSH") arising from order 1 above is to be set-off against any costs liabilities of DSH, NAB, and HSBC to Mr Abboud arising in proceedings 2017/81927 and 2017/81938. (4) Any liability of Mr Potts to DSH arising from order 1 above is to be set-off against any costs liabilities of DSH, NAB, and HSBC to Mr Potts arising in proceedings 2017/81927 and 2017/81938. (5) Execution of the judgment entered by this Court in favour of DSH, as varied by order 1 above, is stayed until the costs of proceedings 2017/81927 and 2017/81938 are assessed or agreed. (6) Grant liberty to apply on seven days' notice. Catchwords: COSTS — Where appeal partially successful and costs of trial disputed — Whether Issues Approach or Proportion Approach should be adopted — Where there was inevitable overlap in the issues in dispute below — Proportion Approach adopted — Costs incurred by non-parties — Orders made as to interest, set-off and stay Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(1) Corporations Act 2001 (Cth), s 180 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Allianz Australia Insurance Ltd v Rawson Homes Pty Ltd (No 2) [2021] NSWCA 334 DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts; HSBC Bank Ltd v Abboud; Potts v National Australia Bank Ltd [2022] NSWCA 165 DSHE Holdings (Receivers & Managers Appointed) (In Liquidation) v Nicholas Abboud (No 3); National Australia Bank Limited v Nicholas Abboud (No 4) [2021] NSWSC 673 DSHE Holdings (Receivers & Managers Appointed) (In Liquidation) v Nicholas Abboud (No 4); National Australia Bank Limited v Nicholas Abboud (No 5) [2022] NSWSC 91 Category: Costs Parties: DSHE Holdings Ltd (receivers and managers appointed) (in liq) (Appellant) Michael Thomas Potts (First Respondent) Nicholas Abboud (Second Respondent) Representation: Counsel: J Arnott SC and C Winnett (DSHE Holdings Ltd, National Australia Bank Ltd and HSBC Bank Australia Ltd) S Nixon SC, M Ellicott and A Zheng (Mr Potts) R Smith SC and S Puttick (Mr Abboud)