Supreme Court New South Wales Medium Neutral Citation: Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 4) [2024] NSWSC 115 Hearing dates: On the papers Decision date: 15 February 2024 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: The cross-defendant pay two thirds of the cross-claimant's costs of the Amended Cross-Summons Catchwords: COSTS – cross-claimant successful on claim advanced at trial – two other claims not pressed at last moment – length of trial reduced – cross-defendant incurred costs relating to claims not pressed – what costs order should be made to reflect these matters Cases Cited: Kanjian Holdings No 1 Pty Ltd v Kanjian; Kanjian v Kanjian (No 4) [2021] NSWSC 1390 Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd [2022] NSWSC 59 Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 2) [2023] NSWSC 1405 Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2); Taylor v LK Group Investments Pty Ltd (No 2) [2023] NSWCA 322 Category: Costs Parties: Shinetec (Australia) Pty Ltd (Plaintiff) The Gosford Pty Ltd (First Defendant/Cross-Claimant) David Anthony Hurst (Second Defendant) David Anthony Sampson (Third Defendant) Bank of China Limited (Fourth Defendant/Cross-Defendant) Macquarie Bank Limited (Fifth Defendant) Representation: Counsel: R G McHugh SC / R J May (First Defendant/Cross-Claimant, Second and Third Defendants) J B Kay Hoyle SC (Fourth Defendant/Cross-Defendant) Solicitors: Johnson Winter Slattery (First Defendant/Cross-Claimant, Second and Third Defendants) King & Wood Mallesons (Fourth Defendant/Cross-Defendant) File Number(s): 2021/220732 JUDGMENT 1. I published my principal judgment in this matter on 20 November 2023. [1] I shall use the same abbreviations here. 2. I have now received written submissions from Gosford and the Bank concerning the costs of Gosford's cross-claim against the Bank. 3. Gosford was successful in relation to the claim that it pressed at trial, being its claim under the Letter of Credit. 4. Gosford had also made a claim for misleading or deceptive conduct and a claim for consequential loss. 5. It abandoned the consequential loss claim on 20 October 2023, shortly before the commencement of the hearing before me on 25 October 2023. It abandoned the misleading or deceptive conduct claim during argument on the first day of the hearing and only after an enquiry from me. 6. The Bank submits that I should infer that the claims for misleading or deceptive conduct and consequential loss were only added by Gosford to its case "tactically and solely for the purpose of anchoring the proceedings in the jurisdiction" and in anticipation of the forum non conviens application from the Bank that I dealt with in my first judgment in these proceedings. [2] 7. I see no basis upon which I could come to that conclusion. It involves a veiled suggestion that Gosford, the Receivers and the legal representatives, at the time engaged in what might well amount to an abuse of process; including claims solely to defeat an anticipated stay application rather than for the purpose of pursuing and vindicating legal rights. 8. As Gosford has submitted, the more likely inference to draw arises from the fact that, shortly before the hearing, the parties' joint accounting experts produced a joint report in which Gosford's expert, Mr O'Keeffe, revised his earlier opinion and concluded that Gosford's loss was $37.78 million, an amount only marginally greater than the amount Gosford contended was due to it from the Bank under the Letter of Credit. Earlier, Mr O'Keeffe had opined that Gosford's loss was some $47 million and some $40 million. 9. In those circumstances, I am not able to conclude that Gosford's abandonment of the claims for misleading or deceptive conduct and consequential loss should be seen as an "effective surrender or capitulation" such as would necessarily result in costs following the event of their abandonment. [3] 10. In those circumstances, while Gosford should have its costs of the claim on which it succeeded, being the claim under the Letter of Credit, it should not have its costs on the misleading or deceptive conduct and the consequential loss claims. 11. However, the Bank invites me to go further and to order that Gosford, and also the Receivers, pay the 65% - 70% of the Bank's costs of the cross-claim, on the basis that its solicitor, Ms Kwan, estimates that approximately 65% - 70% of the costs incurred by the Bank related to the abandoned claims. 12. Ms Kwan's estimate is expressed at a very high level and I think should be treated with some caution. I accept, however, that the Bank has incurred significant costs in meeting the abandoned claims. However, Gosford's abandonment of these claims meant that the hearing was completed in three days, rather than the eight days originally allocated. 13. Overall, accepting that apportionment of costs is very much a matter of discretion, and that mathematical precision is illusory, [4] the appropriate order for costs is that the Bank pay two thirds of Gosford's costs of its cross-claim. 14. My order is that the cross-defendant pay two thirds of the cross-claimant's costs of the Amended Cross-Summons. ********** Endnotes 1. Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 2) [2023] NSWSC 1405. 2. Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd [2022] NSWSC 59 at [100]-[101]. 3. Cf Kanjian Holdings No 1 Pty Ltd v Kanjian; Kanjian v Kanjian (No 4) [2021] NSWSC 1390 at [63] (Henry J). 4. For example, Taylor v Stav Investments Pty Ltd as trustee for the Stav Investments Family Trust (No 2); Taylor v LK Group Investments Pty Ltd (No 2) [2023] NSWCA 322 at [7] (Mitchelmore JA, Simpson AJA agreeing). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2024