LGS v Barbagallo (No.4) [2013] NSWSC 311

Supreme Court New South Wales

Medium Neutral Citation: LGS v Barbagallo (No.4) [2013] NSWSC 311 Hearing dates: On the papers Decision date: 10 April 2013 Before: McDougall J Decision: Earlier costs order stands. Catchwords: COSTS - apportionment of costs - apportionment of costs not capable of mathematical precision. Cases Cited: LGS v Barbagallo [2012] NSWSC 1099 LGS v Barbagallo [2013] NSWSC 68 Category: Costs Parties: LGS (NSW) Pty Limited (Formerly In Vivo Communications Pty Limited) (Subject to Deed of Company Arrangement) ACN 076 683 013 (First Plaintiff) LGS (VIC) Pty Limited (Formerly In Vivo Communications (Vic) Pty Limited (Subject to Deed of Company Arrangement) ACN 079 799 787 (Second Plaintiff) Francesco Barbagallo (First Defendant) Chiron Communications Pty Ltd (ACN 068 226 166) (Second Defendant) Adrenalin Strategics Pty Ltd (Third Defendant) Representation: Counsel: I M Jackman SC / M R Tyson (Plaintiffs) D R Pritchard SC (Defendants) Solicitors: Bartier Perry (Plaintiffs) HWL Ebsworth (Defendants) File Number(s): 2006/293462

Judgment 1The plaintiffs (collectively "In Vivo") sued the first defendant (Dr Barbagallo), claiming that Dr Barbagallo had taken and misused confidential information of In Vivo. They joined his company as a second defendant. It is convenient to refer only to Dr Barbagallo in these further reasons. 2For brief reasons given on 23 August 2012, I ordered judgment for the defendants on In Vivo's claim, with In Vivo to pay costs. I reserved liberty to the parties to apply for other or special costs orders. By notice of motion filed on 7 September 2012, Dr Barbagallo availed himself of that liberty. (I should add that I gave more detailed reasons for those orders on 18 September 2012, [2012] NSWSC 1099, but nothing of present moment turns on this.) 3The special costs orders sought by Dr Barbagallo were as follows: (1) that his costs be paid on the indemnity basis, either in whole or from specific dates; (2) fixing those costs in a gross sum; (3) that the moneys held in court as security for his costs be paid out to him forthwith; and (4) that non-parties to the litigation, Ms Sullivan and a company controlled by her, LGS Enterprises Pty Limited, pay his costs. 4I gave judgment on 13 February 2013: [2013] NSWSC 68. The orders made were as follows (from [89] of those reasons): (1) Subject to order (5) below, order that the costs payable by the plaintiffs to the defendants be assessed on the indemnity basis. (2) Order that the moneys paid into court by the plaintiffs as security for the defendants' costs, together with all interest accrued on those moneys, be paid out to the defendants forthwith. (3) Stay order (2) for 21 days from the date of delivery of these reasons. (4) Order that, for the period 29 August 2008 to 2 August 2012, LGS Enterprises Pty Ltd and Lisa Gaye Sullivan be jointly and severally liable with the plaintiffs for payment of the defendants' costs. (5) Subject to order [6] below, order the respondents to the notice of motion filed on 7 September 2012 to pay 75% of the applicants' costs thereof, assessed on the ordinary basis. (6) Order that any application to discharge or vary order (5) be made by written submissions served and delivered to my Associate within 14 days of the date of publication of these reasons, identifying both the orders sought and the reasons why they are sought; submissions in answer to be served and delivered to my Associate within 7 days thereafter; any such contest to be decided "on the papers". (7) Order that the said notice of motion otherwise be dismissed. 5After delivery of those reasons, Dr Barbagallo's lawyers pointed out, very properly, that there was an error in my factual findings which grounded order (4): namely, the order that LGS Enterprises and Ms Sullivan be jointly and severally liable with the plaintiffs for payment of the defendants' costs for the specified period. Accordingly, on 13 February 2013, I corrected that order by substituting the date 13 May 2012 for the date 29 August 2008 referred to in order (4).