JOHN DAVID RICH & MARK ALAN SILBERMAN v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION [2003] NSWCA 194

New South Wales Court of Appeal

CITATION : JOHN DAVID RICH & MARK ALAN SILBERMAN v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION [2003] NSWCA 194 HEARING DATE(S) : 10 July 2003 JUDGMENT DATE : 10 July 2003

JUDGMENT OF : Spigelman CJ at 1; Ipp JA at 5; McColl JA at 6 DECISION : Leave to appeal refused.

CATCHWORDS : LEAVE TO APPEAL - Costs - whether refusal of insurers to indemnify costs of defendant directors taken into account in costs order in interlocutory proceedings - whether irrelevant consideration where matter not raised below. John David Rich and Mark Alan Silberman PARTIES : (Claimants/Cross-Opponents) Australian Securities & Investments Commission (Opponent/Cross-Claimant) FILE NUMBER(S) : CA 40402/03 B Walker SC / D L Williams COUNSEL : (Claimants/Cross-Opponents) R Macfarlan QC / P Durack (Opponent/Cross-Claimant) Joanne Kelly SOLICITORS : (Claimants/Cross-Opponents) Jan Redfern (Opponent/Cross-Claimant)

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT EQ 5934/01 FILE NUMBER(S) : LOWER COURT Austin J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40402/03 EQ 5934/01

SPIGELMAN CJ IPP JA McCOLL JA

Thursday 10 July 2003 JOHN DAVID RICH & MARK ALAN SILBERMAN v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Judgment 1 SPIGELMAN CJ: This is an application for leave to appeal with respect to costs. The primary point to be made in the appeal, if leave is granted, is the fact that his Honour took into account irrelevant considerations in determining the costs order. 2 The costs order his Honour made was that the costs of some successful interlocutory proceedings, on the part of the plaintiff, would be the plaintiff's costs in the main proceedings. 3 During the course of argument on costs, counsel appearing for the defendants, the cross-opponents on this application, indicated to his Honour that one of the factors that his Honour ought take into account was the fact that the insurers of the defendant directors were refusing to indemnify his clients with respect to the costs of the proceedings. 4 No point was taken by counsel appearing for the cross-claimant that that was an irrelevant consideration. The matter was not considered by his Honour. It, as I said, arises for the first time on appeal. It is a matter of some significance, but in view of the fact that it was not raised below, in my opinion, leave to appeal should be refused. 5 IPP JA: I agree. 6 McCOLL JA: I agree. 7 SPIGELMAN CJ: The order of the Court with respect to the cross-appeal, is that leave to appeal is refused, with costs.