DIF III – Global Co-Investment Fund LP v Babcock & Brown International Pty Limited (No 2) [2019] NSWSC 1578

Supreme Court New South Wales

Medium Neutral Citation: DIF III – Global Co-Investment Fund LP v Babcock & Brown International Pty Limited (No 2) [2019] NSWSC 1578 Hearing dates: 8 November 2019 Decision date: 18 November 2019 Jurisdiction: Equity - Commercial List Before: Ball J Decision: See paragraphs [34] to [36] of this judgment Catchwords: COSTS – multiple defendants and cross-claims – unsuccessful cross-claims by defendants – whether costs of cross-claims should be borne by unsuccessful plaintiffs – whether plaintiffs' claim was catalyst for cross-claims – whether reasonable for defendants to have joined cross-defendants – whether cross-claims raised issues private to the parties to them Legislation Cited: Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) Insurance Contracts Act 1984 (Cth) Cases Cited: DIF III – Global Co-Investment Fund LP v Babcock & Brown International Pty Limited [2019] NSWSC 527 Furber v Stacey [2005] NSWCA 242 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 688, (2003) 201 ALR 555 Category: Costs Parties: DIF III – Global Co-Investment Fund LP (formerly Babcock & Brown DIF III - Global Co-Investment Fund LP) (First Plaintiff) DIF III GP Limited (Second Plaintiff) Babcock & Brown International Pty Ltd (ACN 108 617 483) (First Defendant) Babcock & Brown LP (Second Defendant) DIF Capital Partners Limited (ACN 101 611 438) (Third Defendant) Robert Neil Topfer (Fourth Defendant) Phillip Hartley Green (Fifth Defendant) Fergus John Neilson (Sixth Defendant) Harry Nicholson (Seventh Defendant) Robert Rupert Officer (Eighth Defendant) The Royal Bank of Scotland Plc (Sixteenth Defendant) RBS Equity Corporation (Seventeenth Defendant) Certain Underwriters subscribing to Lloyd's policy FD014280g (Thirty Fourth Defendant) Certain Underwriters subscribing to Lloyd's Policy Numbered BD0391FD014600G (Thirty Fifth Defendant) Certain Underwriters subscribing to Lloyd's policy numbered B0391FD014610G (Thirty Sixth Defendant) Certain Underwriters subscribing to Lloyd's policy numbered B0391FD017580G (Thirty Seventh Defendant) Allianz Australia Insurance Limited (First Cross-Defendant to First Cross Claim | Second Cross Claim and Third Cross Claim | First Third Party) XL Insurance Company SE (formerly known as XL Insurance Company Limited (Second Cross-Defendant to First Cross Claim | Second Cross Claim and Third Cross Claim | Second Third Party) QBE Underwriting Limited (Third Cross Defendant to First Cross Claim | Second Cross Claim and Third Cross Claim | Third Third Party) Aspen Insurance UK Limited (Fourth Cross Defendant to First Cross Claim | Second Cross Claim and Third Cross Claim | Fourth Third Party) Liberty Mutual Insurance Company trading as Liberty International Underwriters (Fifth Cross-Defendant to First Cross Claim | Second Cross Claim and Third Cross Claim | Fifth Third Party) Certain Lloyd's Underwriters comprising Markel Syndicate 3000 at Lloyd's subscribing to Contract No B0391FD023290G (Sixth Cross-Defendant to First Cross Claim | Second Cross Claim and Third Cross Claim | Sixth third Party) London Australia Underwriting Pty Limited on behalf of Novae Syndicates Limited (Syndicate 2007 at Lloyd's) (Seventh Cross-Defendant to First Cross Claim | Second Cross Claim and Third Cross Claim | Seventh Third Party) HCC International Insurance Company PLC (Company No. 01575839) (Eighth Cross-Defendant to First Cross Claim | Second Cross Claim and Third Cross Claim | Eighth Third Party) Chubb Insurance Australia (formerly known as ACE Insurance Limited) (Ninth Cross-Defendant to First Cross Claim | Second Cross Claim and Third Cross Claim | Ninth Third Party) Spin Holdco Inc (Fourteenth Third Party | Cross Defendant to Fourth Cross Claim) Representation: I M Jackman SC and B Ng (Plaintiffs) P J Brereton SC with C Mitchell (First and Second Defendants) P Strickland (Fourth Defendant) L E Hulmes (Fifth Defendant) P Knowles (Sixth and Seventh Defendants) R P V Carey (Thirty Fourth to Thirty Seventh Defendants) C J Peadon (First to Ninth Cross Defendants | First to Ninth Third Parties)