[2020] NSWSC 957

Strategic Communications Management Pty Ltd v Techfront Australia Pty Ltd

(1) Judgment for the plaintiff against the second defendant, the third defendant, and the fourth defendant for $6,696,392. (2) The second defendant, the third defendant, and the fourth defendant are to pay the plaintiff’s costs of the proceedings against them as agreed or assessed. Any assessment is to be on the footing that the plaintiff is only entitled to 90% of the costs of the three day hearing and the costs of and incidental to the preparation and production of the report of Tony Samuel are to be excluded.

Catchwords

COSTS – Other administrative orders – No issue of principle

Judgment

[1]
HIS HONOUR: This judgment brings to conclusion the proceedings which culminated in my judgment delivered on 1 July 2020: Strategic Communications Management Pty Ltd v Techfront Australia Pty Ltd [2020] NSWSC 847.
[2]
Definitions used there are used here. The plaintiff seeks its costs and pre-judgment interest which as at 24 July 2020 amounts to $460,768.59, as is established by an affidavit of Strategic’s solicitor Troy Alexander Gurnett of 20 July 2020. There is no reason why Strategic should not have pre-judgment interest.
[3]
Strategic also seeks release to it of $80,000 paid by it as security for costs, which is currently in a controlled bank account. There is no reason why this should not be paid back.
[4]
The second, third, and fourth defendants submit that any costs order should include costs incurred, “in respect of the transaction with the previous vendors,” including “…costs of expert witness report obtained from Mr Samuel.”
[5]
I do not consider it appropriate to say anything about the transaction with the previous vendors. The plaintiffs are only entitled to their costs of these proceedings and whether they include anything to do with dealings with the previous vendors will be a matter for assessment.
[6]
I uphold the defendants’ contention in connection with the forensic accountant Mr Samuel. Whilst generally the Court does not apportion costs with respect to issues, Strategic’s unsuccessful claim for consequential damage can clearly be quarantined and Strategic is not, in fairness, entitled to them. I think, whilst precision is not possible that they accounted for about 10% of the time spent during the hearing. In my opinion, the plaintiff should be entitled to its costs, but that its recovery with respect to the three hearing days should be reduced by about 10% and its costs are to exclude the costs of and incidental to the preparation of Mr Samuel’s report.
[7]
I make the following orders:
1. (1)
  Judgment for the plaintiff against the second defendant, the third defendant, and the fourth defendant for $6,696,392.
2. (2)
  The second defendant, the third defendant, and the fourth defendant are to pay the plaintiff’s costs of the proceedings against them as agreed or assessed. Any assessment is to be on the footing that the plaintiff is only entitled to 90% of the costs of the three day hearing and the costs of and incidental to the preparation and production of the report of Tony Samuel are to be excluded.
3. (3)
  The sum of $80,000, together with any interest accrued on it, paid by the plaintiff into a controlled monies account by its solicitors as security for the defendants’ costs in the proceedings is forthwith to be paid to the plaintiff.
4. (4)
  The plaintiff has leave to discontinue against the first defendant with no order as to costs between them. This order shall stand as notice of discontinuance without the necessity to file any notice of discontinuance.