Driver v Botanical Water Technologies Pty Ltd (No 2) [2024] NSWSC 1641

Supreme Court New South Wales

Medium Neutral Citation: Driver v Botanical Water Technologies Pty Ltd (No 2) [2024] NSWSC 1641 Hearing dates: On the papers Decision date: 20 December 2024 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) The fifth defendant pay the second plaintiff the sum of USD8,518,852.64; (2) The fifth defendant pay the fourth plaintiff the sum of USD7,469,896.98; (3) The fifth defendant pay 90 percent of the plaintiffs' costs on the ordinary basis as agreed or assessed; (4) There otherwise be no order as to costs of the proceedings. Catchwords: COSTS — Party/Party — Bases of quantification — Ordinary basis — Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 — Whether issues subject to costs are clearly dominant or separable — Where claims are separate in a sense, but arise out of same factual matrix — Not appropriate to attempt apportioning of costs between different claims — Plaintiffs awarded 90% of costs to recognise failed or abandoned claims JUDGMENTS AND ORDERS — Interest — Award of as damages — Where fiduciary relationship — Where appropriate for interest to be calculated from date Court delivered principal judgment Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) Practice Note SC Gen 16 Cases Cited: BCEG International (Australia) Pty Ltd v Xiao [2022] NSWSC 972 Driver v Botanical Water Technologies Pty Ltd [2024] NSWSC 1409 Hagan v Waterhouse (1991) 34 NSWLR 308 Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298; [2003] NSWCA 10 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Category: Costs Parties: David Driver (First Plaintiff) Ambrosios Kambouris (Second Plaintiff) Kambouris Shares Pty Ltd (Third Plaintiff) DJD Trading Pty Ltd (Fourth Plaintiff) Botanical Water Technologies Pty Ltd (First Defendant) Botanical Water Technologies Ltd (Second Defendant) Botanical Water Technologies IP Ltd (Third Defendant) MyCo Pty Ltd (Fourth Defendant) Terry Paule (Fifth Defendant) Aqua Botanical Beverages (Australia) Pty Ltd (In Liquidation) (Sixth Defendant) Representation: Counsel: DFC Thomas SC with H Atkin (Plaintiffs)