Allstar Capital Pty Limited v FIP Holdings Victoria Pty Limited [2019] NSWSC 693

Supreme Court New South Wales

Medium Neutral Citation: Allstar Capital Pty Limited v FIP Holdings Victoria Pty Limited [2019] NSWSC 693 Hearing dates: 6 June 2019 Date of orders: 14 June 2019 Decision date: 14 June 2019 Jurisdiction: Common Law Before: Davies J Decision: Pursuant to r 33.11 of the Uniform Civil Procedure Rules and s 98(4)(c) of the Civil Procedure Act 2005 (NSW) I order the defendant to pay to the applicant costs fixed in the sum of $10,000. Catchwords: CIVIL PROCEDURE – subpoenas – costs – cost of compliance – application by third party to recover its costs incurred in complying with subpoena issued by defendants – r 33.11 UCPR – applicant had previously acted for the plaintiff in a commercial transaction with the defendant that preceded the present proceedings – several subpoenas issued – first subpoena defective – large volume of documents required review – significant delay caused by defendant's solicitors – defendant's solicitors failed to agree to a reasonable request for adjournment of subpoenas – defendant's solicitors failed to negotiate with the applicant as to the amount of costs to be paid – r 42.33 UCPR – applicant sought fixed sum costs – applicant entitled to reasonable costs and fixed sum costs deemed reasonable

CIVIL PROCEDURE – appearance – where defendant is a company – where a director of the defendant signed a letter of authority authorising a third party to appear on defendant's behalf – third party was not a director nor an officer of the company – r 7.1 UCPR – rule dispensed with to avoid further delay Legislation Cited: Civil Procedure Act 2005 (NSW) ss 14, 56, 98, 99 Federal Court Rules Uniform Civil Procedure Rules 2005 (NSW) rr 7.1, 33.11, 42.53 Cases Cited: A Pty Ltd v Z [2007] NSWSC 999 Foyster v Foyster Holdings [2003] NSWSC 881 Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284 Kumagai Australia Finance v Avarton Ltd (Supreme Court (NSW), Bryson J, 7 June 1991, unrep) Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77 Category: Procedural and other rulings Parties: McCabes Lawyers Pty Ltd & McCabe Curwood Pty Ltd (Applicants) Allstar Capital Pty Limited (Plaintiff) FIP Holdings Victoria Pty Limited (Defendant) Representation: Counsel: L Dominish (Applicants) N Elali (by leave) (Defendant)