Fantuz v Totem Road Pty Ltd [2023] NSWSC 1483

Supreme Court New South Wales

Medium Neutral Citation: Fantuz v Totem Road Pty Ltd [2023] NSWSC 1483 Hearing dates: Last written submissions 22 November 2023 Date of orders: 1 December 2023 Decision date: 01 December 2023 Jurisdiction: Equity - Corporations List Before: Black J Decision: No order as to costs for Plaintiff's claim; Defendant to pay the costs of their cross-claim; no orders as to costs of this costs application. Catchwords: COSTS – Party/party – Where plaintiff narrowed the scope of the document access application under s 247A of the Corporations Act 2001 (Cth) at the hearing – Where defendant failed in its cross-claim – Whether costs orders should be made in regard to the plaintiff's claim and the defendant's cross-claim Legislation Cited: - Corporations Act 2001 (Cth), ss 247A, 1324 Cases Cited: - United Rural Enterprises v Lopmand [2003] NSWSC 405 Category: Costs Parties: Marcel Fantuz (Plaintiff/Respondent) Totem Road Pty Ltd (Defendant/Applicant) Representation: Counsel: A Gauja (Plaintiff/Respondent) A Lim (Defendant/Applicant)

Solicitors: Rockcliff Lawyers (Plaintiff/Respondent) Panetta Lawyers (Defendant/Applicant) File Number(s): 2023/171291

Judgment

Background 1. By Summons filed on 29 May 2023, the Plaintiff, Mr Fantuz, initially sought relief under ss 247A and 1324 of the Corporations Act 2001 (Cth) ("Act"). Mr Fantuz narrowed the relief that he sought at the hearing. By Interlocutory Process filed 9 October 2023, in the nature of a cross-claim, the Defendant, Totem Road Pty Ltd ("Company") in turn sought relief seeking to require the sale of shares held by Mr Fantuz to the Company or its nominee ("Cross-Claim"). The form of relief sought by the Company was reformulated orally at the hearing. 2. By my judgment delivered on 1 November 2023, I made orders in accordance with the form of orders proposed by Mr Fantuz, omitting an order for the provision of audited financial reports which he no longer sought and ordered that the Interlocutory Process filed by the Company be dismissed. I also observed that: "Counsel have referred to the possibility that it will be necessary to have further submissions as to costs, and possibly a determination as to costs in Chambers, and I will allow that opportunity if they require it. Having said that, it seems to me, by way of preliminary view, that there has been a mixed result in this case. Mr Fantuz has not pressed his application for audited accounts, which was pressed until the hearing today; there appears to have been at least some degree of consensus as to the orders sought under s 247A of the Act, as to which Mr Fantuz has succeeded, from an earlier point; and the Company has failed in its Interlocutory Process. That, it might have been thought, was a circumstance in which it was likely that the Court would make no order as to costs, on the basis that the mixed result is best reflected by that position. There is also a real risk that any order that provides for the assessment of costs of separate aspects of the proceedings that the parties won or lost – for example, that Mr Fantuz pay the Company's costs of the claim for audited accounts which he did not press and the Company pay Mr Fantuz's costs for the Interlocutory Process, which failed – will expose both parties to wasted costs in a complex assessment, where an assessor would need to attribute costs as between those aspects of the proceedings." 1. The parties, or at least Mr Fantuz, did not accept that preliminary view and I therefore made directions to allow written submissions and the provision of a bundle of documents as to costs, with the question of costs to be determined in Chambers.