G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 15) [2024] NSWSC 762

Supreme Court New South Wales

Medium Neutral Citation: G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 15) [2024] NSWSC 762 Hearing dates: 18 June 2024 Decision date: 18 June 2024 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Allow $85,000 for the applicant's costs of compliance incurred in relation to subpoenas Catchwords: CIVIL PROCEDURE – subpoenas – costs of compliance – whether costs were reasonably incurred Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 6) [2022] NSWSC 628 G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 8) [2022] NSWSC 1170 Money Max Int Pty Ltd (Trustee) v QBE Insurance Group Ltd (No 3) [2018] FCA 2101 Category: Procedural rulings Parties: Conmas Group Pty Ltd (formerly Calibre Group Pty Ltd) (Applicant) MACH Energy Australia Pty Ltd (First Respondent) MACH Mount Pleasant Operations Pty Ltd (Second Respondent) Representation: Counsel: J Entwistle (Applicant) E Ball (Respondents)

Solicitors: HWL Ebsworth (Applicant) Corrs Chambers Westgarth (Respondents) File Number(s): 2019/71358

EX TEMPORE JUDGMENT (REVISED) 1. The background is set out in my earlier judgments in these proceedings, for example, that of 17 May 2022. [1] This is the Court's 15th and my 13th interlocutory judgment in these proceedings. I shall use the same abbreviations here as I have adopted in earlier judgments. 2. MACH caused two subpoenas to be issued to the company then known as Calibre Group Pty Ltd. That company is now known as Conmas Group Pty Ltd, but as the documents to which I refer describe it as Calibre, I shall adopt that nomenclature for the purposes of these reasons. 3. Calibre was at one stage the parent of the first plaintiff, although it is now a stranger to the litigation. 4. The subpoenas have now been answered. Calibre now seeks, by a notice of motion filed on 1 May 2024, its costs of compliance. 5. There is no dispute as to the principles to be applied. Under Uniform Civil Procedure Rules 2005 (NSW) r 33.11, the party in the position of Calibre may recover its actual costs reasonably incurred. The authorities show that a broad-brush approach is warranted. [2] 6. Originally, Calibre sought costs of $104,857.90. However, as advanced in written submissions and by Mr Entwistle, who appeared for Calibre this morning, Calibre no longer presses its costs in relation to a motion brought by MACH seeking to issue compliance with the first of the subpoenas. 7. That application was heard by Rees J on 28 November 2022 and 6 December 2022. 8. Calibre now seeks costs of $95,558.75. That is calculated as the difference between its actual total costs of complying with the subpoenas, $121,694.90, less its actual costs of the motion before Rees J, $12,484.90, less a discount of 12.5% which its costs consultant, Ms Rosati, has suggested was appropriate to take account of any inefficiencies or the like. 9. MACH does not oppose an order that it pay Calibre's reasonable costs of compliance with the subpoenas, but submits that the figure that should be adopted is $40,000, rather than the figure I have just mentioned.