ICAP Australia Pty Ltd v Howell; GFI Australia Pty Ltd v Cotton (No 2)

On 13 August 2019 I acceded to ICAP’s application to set aside a Notice to Produce served on it by GFI: ICAP Australia Pty Ltd v Howell; GFI Australia Pty Ltd v Cotton [2019] NSWSC 1024.

Notwithstanding ICAP’s success on the application, I expressed concern about the need for ICAP to bring the application, especially in light of the President’s recent exhortation to the legal profession to “eschew arid and obstructive debates” see Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188 at [18]-[20] (Bell P, Leeming JA and Emmett AJA agreeing).

I expressed a preliminary view that, notwithstanding its success, ICAP should pay the costs of its application.

I invited submissions in relation to that question. Those submissions are now to hand.

Of course, as ICAP pointed out, costs ordinarily follow the event.

My attention has been drawn to correspondence passing between the parties in which the possible ambiguity of the first category of documents sought in the Notice to Produce was identified, namely that this sought not merely documents effecting the extension of the Initial Period of Service but documents “setting out the terms” on which that extension was made.

That correspondence also foreshadowed the basis on which I ultimately set aside the Notice to Produce.

Nonetheless, I remain of the view that ICAP’s response to the Notice to Produce was, although technically consistent with authority, nonetheless an example of the type of “[u]nduly technical and costly disputes about non-essential issues” that, admittedly in a different context, the High Court has deprecated: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 205 CLR 303; [2013] HCA 46 at [57].

On reflection, my conclusion is that I ought not order ICAP pay the costs of the application. It has, after all, been successful.

The Court’s disapproval of the course adopted by ICAP will be sufficiently marked by making no order as to the costs of its application to set aside the Notice to Produce.