Gray v Sirtex Medical Ltd [2007] NSWSC 476

New South Wales Supreme Court

CITATION : Gray v Sirtex Medical Ltd [2007] NSWSC 476

HEARING DATE(S) : 26/03/07

JUDGMENT DATE : 11 May 2007

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Barrett J

DECISION : No order as to costs

CATCHWORDS : PROCEDURE - costs - where no determination on the merits - whether unreasonableness on either side warranting departure from outcome that there should be no order as to costs

CASES CITED : Foukkare v Angreb Pty Ltd [2006] NSWCA 335 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

PARTIES : Bruce Nathaniel Gray - Plaintiff Sirtex Medical Limited - Defendant

FILE NUMBER(S) : SC 5712/06

COUNSEL : Mr N.A. Cotman SC - Plaintiff Mr A.D. Justice - Defendant

SOLICITORS : Toomey Pegg Drevikovsky - Plaintiff Watson Mangioni - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

FRIDAY, 11 MAY 2007

5712/06 BRUCE NATHANIEL GRAY v SIRTEX MEDICAL LIMITED JUDGMENT 1 This is yet another matter in which the only question to be determined by the court is the question of costs. 2 The plaintiff was at all material times a director and shareholder of the defendant. In November 2006, he commenced proceedings in which he sought to have the court compel the production to him of certain financial records of the defendant for inspection and copying. The parties eventually reached an accommodation under which the defendant produced certain documents to the plaintiff. The regime the parties adopted by consent included reservation of liberty to apply. The record of proceedings before White J on 13 December 2006 included the following: "I note that the parties have reached an agreement which, subject to the possible exercise of liberty to apply, resolves the application." 3 His Honour then granted liberty to apply and the proceedings were adjourned to 1 February 2007. 4 The parties are agreed that, in light of the consensual outcome, the proceedings should be dismissed. But they do not agree on the appropriate order as to costs. The plaintiff says that he should be awarded costs. The defendant's position is that there should be no order as to costs and that each party should bear his or its own costs. 5 The principles to be applied in cases such as the present were recently summarised by Beazley JA in Foukkare v Angreb Pty Ltd [2006] NSWCA 335 where reference was made to the leading authorities, including Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622. Her Honour said (at [66] to [68]: "In Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 Hill J summarised the principles that have emerged from the case law as to how the Court should approach the exercise of discretion in respect of costs when there has been no hearing on the merits. He said (at 201): "(1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order … (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial … This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them … (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation … (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted …'