Idoport Pty Limited and Anor v National Australia Bank Limited and 8 Ors; Idoport Pty Limited and Market Holdings Pty Limited v Donald Robert Argus; Idoport "JMG" v National Australia Bank Limited and Ors [50]

[2001] NSWSC 1080

CITATION:	Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited & Market Holdings Pty Limited v Donald Robert Argus; Idoport "JMG" v National Australia Bank Limited & Ors [50] [2001] NSWSC 1080
FILE NUMBER(S):	SC 50113/98; 50026/99; 3991/00
HEARING DATE(S):	9/11/01
JUDGMENT DATE:	21 November 2001
PARTIES :	Idoport Pty Limited (Plaintiff) National Australia Bank Limited (Defendant) Donald Robert Argus (Defendant)
JUDGMENT OF:	Einstein J

COUNSEL :	Mr M Dicker (Plaintiff) Mr J Gleeson SC (Defendants)
SOLICITORS:	Withnell Hetherington (Plaintiff) Freehills (Defendants)
CATCHWORDS:	Costs
DECISION:	The defendants pay one half of the plaintiff's costs of the application referred to in paragraph 4 of the 9 November 2001 judgment

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION – Commercial List

Einstein J

21 November 2001 ex tempore
Revised 27 November 2001

50113/98 IDOPORT PTY LIMITED & ANOR v NATIONAL AUSTRALIA BANK LIMITED & 8 ORS

50026/99 IDOPORT PTY LIMITED & ANOR v DONALD ROBERT ARGUS

3991/00 IDOPORT PTY LIMITED (“JMG”) v NATIONAL AUSTRALIA BANK

Judgment

1 The judgment ([2001] NSWSC 1031) delivered on 9 November 2001 dealt with costs of a number of applications heard in July and August 2001 relating to aspects of the defendants' central application for orders to be made for the provision by the plaintiff of security for the defendants' costs. Orders were made on 21 November 2001 consistently with the reasons given in the 9 November 2001 judgment.

2 Mr Dicker, of counsel for the plaintiff, has now pointed out that the reasons, although identifying in paragraph 4, what was described as an informal application, did not proceed to deal with costs of and related to the informal application. Having reviewed the 9 November 2001 judgment I accept that this indeed appears to be the case.

3 The costs of that informal application thus arise for decision.

4 The defendants' submission is that costs of the application should be characterised as costs of the security for costs motions themselves (motions 19 and 22) or alternatively, as costs of the motion which ultimately determined the issue of confidentiality (namely motion 49). The bases for the defendants' said submissions were reduced to writing and were in the following terms: -

"3. The basis upon which the Court should conclude that the costs of the hearing in the period 22 to 27 August 2001 should be characterised as costs of the security for costs motions are threefold, namely:
(1) the cross-examination of Mr D'Emilio on 22 and 23 August 2001 (see transcript pages 12,037-12,122) was tendered at the hearing of notices of motion 19 and 22 on 31 August 2001 and became evidence in that hearing (the transcript of the cross-examination was admitted without objection as exhibit "DX8" - see transcript pages 12,406.49-12,407.3);
(2) the proceedings during the period 22 - 27 August 2001 and the orders made on 28 August 2001 were in contemplation of the hearing of the defendants' notices of motion 19 and 22 seeking security for costs, and the documents the subject of the application and orders were sought by the defendants pursuant to notices to produce and subpoenas as evidence to be tendered at the hearing of those motions;
(3) the confidentiality regime accepted by the court and reflected in orders made by the court on 28 August 2001 (subsequently varied on 29 August 2001) were markedly different to the orders that were contended for by the plaintiffs and made by the court on the hearing of notices of motion 39 and 40.
4. Alternatively, the defendants submit that the proceedings, in the period 22 to 27 August 2001, should be determined to be part of the costs of notice of motion 49. This is on the basis that the orders made on 28 August 2001 were interim confidentiality orders and that the question of confidentiality was only finally determined upon the hearing of notice of motion 49. In this regard it is relevant that the plaintiff's evidence in support of the claim for confidentiality relied upon on at the hearing of notice of motion 49 was no different to that which was relied upon for the informal motion heard in the period 22 to 27 August 2001. The defendants' submissions filed in relation to notice of motion 49 refer in some detail to this evidence (see paragraphs 27 to 32 of the defendants' submissions dated 4 October 2001)."

5 In my view, these submissions by the defendants are not of substance.

6 In my view, the appropriate order is that the defendants pay one half of the plaintiff’s costs of the application referred to in paragraph 4 of the 9 November 2001 judgment. In this regard it is particularly necessary to recall paragraphs 3, 13, 38 and 39 of the judgment delivered on 27 August 2001, it being unnecessary in this judgment to again recite what appears in those paragraphs which are self-explanatory.

7 In my view, the plaintiff’s measure of success on the informal application [seen in the context emphasised in the first sentence of paragraph 6 of the 14 November 2001 judgment] makes it appropriate for the defendants to pay one half of the plaintiff’s costs of the application referred to in paragraph 4 of the judgment.

8 Short minutes of order to reflect these reasons should be brought in to deal with that particular matter.

I certify that paragraphs 1 - 8
are a true copy of the reasons
for judgment herein of the
Hon. Justice Einstein
given on 21 November 2001
and revised on 27 November 2001

___________________
Susan Piggott
Associate

27 November 2001

Last Modified: 06/13/2002