Federal Court of Australia

WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd (No 4) [2025] FCA 826

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court Act 1976 (Cth), the following material be suppressed until further order:

(a)    the material exhibited at pages 29 to 127 of the Report of Roland Matters dated 11 July 2025;

(b)    Annexure LC-6 to the Affidavit of Leon Chung affirmed 16 July 2025; and

(c)    Annexure LC-12 to the Affidavit of Leon Chung affirmed 18 July 2025.

2.    Pursuant to rules 40.02(b) and 40.05(b) of the Federal Court Rules 2011 (Cth), the Third, Fourth, Seventh and Eighth Defendants pay the Plaintiffs’ costs in a lump sum of $1,659,372.63 (inclusive of GST), payable within 14 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

JACKMAN J:

1    I gave judgment in these proceedings on 13 June 2025, at the end of which I made some preliminary and tentative observations in relation to costs: WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622 at [187]–[190]. I use the same defined terms in this judgment. All figures referred to in these reasons are inclusive of GST.

2    The plaintiffs seek a lump sum order for costs under r 40.02(b) of the Federal Court Rules 2011 (Cth) (Rules). To the extent that the costs claimed relate to proceedings in the New South Wales Supreme Court, which were transferred to this Court, the application is made under r 40.05(b). There is a dispute as to whether the plaintiffs are parties to those proceedings within the meaning of r 40.05(b).

3    In my view, even if the Plaintiffs are not, strictly speaking, to be regarded as parties within the meaning of that rule, s 23 of the Federal Court of Australia Act 1976 (Cth) is sufficiently wide to enable me to make an order which will deal with their costs incurred in those proceedings. Given that the winding up proceedings were heard together with the main proceedings brought by the plaintiffs, there seems to me no reason to read r 40.05(b) so narrowly as to exclude the plaintiffs from its ambit. But in any event, as I have said, s 23 is wide enough to include them as a matter of discretion.

4    The amount which the plaintiffs seek, by way of lump sum order, is $1,872,152.76, comprising:

(a)    solicitors’ fees of $1,129,753.96, being 85% of the actual costs of $1,329,122.30;

(b)    disbursements including counsel's fees of $592,070.90, being 100% of the actual costs incurred; 

(c)    the costs incurred in the application for a lump sum order of $150,327.90, being 85% of the actual costs of $176,856.35. 

5    Those amounts are supported by the evidence of Mr Leon Chung, the solicitor with carriage of the matter for the plaintiffs. The Angelis Defendants rely on a report by Mr Roland Matters, a highly experienced costs assessor, who has been providing legal costing services since 1985. He quantifies the amount of costs which would be certificated under the Rules (excluding the costs of the application for a lump sum cost order) as:

(a)    $784,088.37 in respect of solicitors’ fees, including an additional amount for skill, care and responsibility (being 59% of the actual costs for solicitors’ fees);

(b)    $538,323.22 in respect of disbursements, including counsel's fees (being 91% of the actual costs of those disbursements).

6    However, Mr Matters appears to have overlooked a further disbursement invoice of $4,944.50, dated 4 July 2025, which was briefed to him.

7    Those figures represent an overall amount of 69% of the actual costs incurred for solicitors’ fees and disbursements (including counsel's fees).

8    At endnote 10 of his report, Mr Matters explains why he adopts a mean blended hourly rate of $429.50 for solicitors’ fees, in contrast to the higher amounts charged by the plaintiffs’ solicitors. That is said to be a common quantification, although it is not clear to me what that means, and there is no explanation as to why it should be regarded as appropriate for this case, being a complex, and in some respects novel, case heard on a highly expedited basis. The evidence on that fundamental question is therefore thin.

9    At [24], Mr Matters provides a table summarising the amounts that he has "taxed off" solicitor fees. The basis for treating certain services as not having been fairly and reasonably incurred, as to nature and extent, for the purposes of a party-party assessment of costs, appears to be set out in endnote 15, which refers to concurrent attendances with counsel and at Court, the review of material by more personnel than was fair and reasonable, time records using the words "amend" or "amending", and the redaction of privileged material in a way that does not disclose a sufficient basis to find that they were fair and reasonable.

10    As to attendances at Court by multiple solicitors, Mr Chung proves that only he and Ms Park (a recently appointed partner, but whose rates were charged as a senior associate) charged for their time for attending the hearing. I also note that the plaintiffs’ solicitors have written off $66,124.15 in their fees, and it is not clear from Mr Matters' report whether he has taken that write-off into account. As to the redaction of material, and the deduction of items based on redactions on the ground of legal professional privilege, the objection would have the unprincipled consequence of a party being put at a disadvantage by reason of a legitimate claim for legal professional privilege.

11    It is not possible for me to quantify accurately the extent to which Mr Matters' deductions may be unjustified, although I have reached the view that some of them are for the reasons given above. Doing the best I can, I regard it as appropriate to allow solicitors’ fees at 70% of the actual costs, being an estimate in line with what, in my experience, is a reasonable and common rate of recovery, my experience being drawn from the evidence given on applications for security for costs. The Angelis Defendants appeared to accept the reasonableness of that estimate. A recovery of 70% of solicitors’ fees yields an amount of $930,385.61.

12    At [25], Mr Matters refers to having "taxed off" $48,877.67 in counsel’s fees, which he explains in endnote 26. However, Mr Chung has provided a compelling response to the matters set out in that endnote at [24] of his affidavit of 16 July 2025. Accordingly, I do not regard any discount in counsel’s fees as appropriate.

13    As to the costs of the costs application itself, the amount of solicitors’ fees incurred to date and anticipated is $133,134.10, and I adopt the same percentage of 70%, yielding a figure of $93,193.87. Counsel’s fees incurred to date and anticipated amount to $43,722.25, which I allow in full. The total for this item is therefore $136,916.12.

14    Accordingly, the amount of recoverable costs adopting the best estimate that I can is a total of $1,659,372.63, comprising:

(a)    $930,385.61 for solicitors’ fees;

(b)    $592,070.90 for disbursements including counsel’s fees; and 

(c)    $136,916.12 for the costs application itself.

15    Although that figure is a better recovery than was offered by the plaintiffs in their open offer of yesterday, I regard that offer as having been made too late to attract an order for the costs of today on the indemnity basis.

16    The Angelis Defendants submit that I should discount those figures by a further 4% because the plaintiffs will have avoided the costs, delay and potential uncertainty of a formal costs assessment. They cite in support Seafolly Pty Ltd v Madden (No 6) [2015] FCA 1369 at [38], but in that case Tracey J referred to the need to take into account a discount applied to actual costs, which I have already done. His Honour also referred to the fact that no taxation on a party-party basis had occurred and the quantification of a lump sum order must avoid underestimation and overestimation to the extent possible. That is what I have sought to do. The fact that the costs, delay and uncertainty of a formal costs assessment have been avoided is a benefit to both parties and, in itself, is a neutral factor in the quantification of the amount.

17    The Angelis Defendants also contended for an apportionment of costs referable to six issues on which the plaintiffs were unsuccessful. However, I do not regard those matters as sufficiently severable or sufficiently substantial in terms of the time and cost involved to warrant any such apportionment.

18    The Angelis Defendants also submit that the question of cost should be deferred to the further hearing in November 2025 in relation to questions of valuation of pecuniary remedy. They point to the fact that the plaintiffs rejected an open offer dated 23 May 2025 of $700,000 for their shares in Goldstone PE and Goldstone FM (but excluded any compensation for the value of the Carry Entitlement in that offer), with each party to bear their own costs. As I indicated on a tentative basis in the principal judgment at [188], that offer seems to me to fall short of the measure of the plaintiffs’ success in the proceedings. In particular, the offer did not make any proposal in relation to the Carry Entitlement which, if it had been accepted, would have left the plaintiffs in the position where they were beholden to the management of Mr Angelis in determining what would happen to the Carry Entitlement. 

19    It may well be that Mr Angelis would prefer to retain the underlying investments of the Goldstone Fund and bring about a situation where the plaintiffs would not realistically have had any opportunity to realise the value of the Carry Entitlement. That, in light of the findings that I have already made as to the nature of Mr Angelis's conduct, would have led to a situation of further disputation and a likely continuation of the oppressive conduct which Mr Angelis has displayed to date. Accordingly, in my view, irrespective of the value (if any) which the Carry Entitlement is ultimately found to have, the plaintiffs acted reasonably in rejecting the offer. I also note the remarks that I made in the main judgment concerning the non-pecuniary consequences of oppressive conduct to which the Court is not coldly indifferent: at [174].

20    The plaintiffs seek an order that the lump sum costs order be made payable forthwith in light of the bifurcated nature of the final hearing, whereby matters concerning quantification and pecuniary remedies are to be decided separately and subsequently. They refer by way of illustration to the Orders made by the High Court in E & J Gallo Winery v Lion Nathan Australia Pty Ltd [2010] HCA 15; (2010) 241 CLR 144 [73], in particular, Order 6, in which the High Court made a costs order despite the fact that there was an outstanding remitter to deal with questions of pecuniary remedies.

21    The plaintiffs have incurred very substantial legal costs by reason of the oppression caused by the Angelis Defendants, and Ms Commins has not been paid her entitlements by the Goldstone Fund since February 2025 when her employment was wrongfully terminated. There is no need for the plaintiffs to establish financial hardship in order to obtain an order that the costs be payable forthwith. Nor, in my view, is it necessary that the plaintiffs have in fact paid the invoices which have been sent to them. I recognise that the New South Wales Court of Appeal has said that it is usual for a party seeking a gross sum costs order to provide evidence of the costs in fact incurred and paid: Amirbeaggi v EB (No 2) [2023] NSWCA 184 [13]. However, the Court did make a gross sum costs order in that case in the absence of evidence of actual payment.

22    As a matter of principle, I do not see why the fact of actual payment is material to the making of a lump sum costs order or to an order that such an order be payable forthwith. In any event, by an affidavit made this morning, no doubt prompted by the submissions in writing made by the Angelis Defendants, Mr Chung has proved the amounts paid and unpaid by the plaintiffs. I note also that there is no evidence before me to support the submission made by the Angelis Defendants that there is a risk that the plaintiffs will not be able to repay the sum in the event of a successful appeal by the Angelis Defendants.

23    The Angelis Defendants also contend that the plaintiffs should not have the benefit of a costs order in relation to the costs application itself. I disagree. The plaintiffs had to approach the Court and incur the cost of quantifying and arguing for such an order. Although I have applied a further discount to their claim for solicitors’ fees beyond the amount quantified and sought by the plaintiffs, I regard the plaintiffs as having been substantially successful on the cross-application, both in terms of its amount and the timing of its quantification and payment. Accordingly, in my view, the appropriate order is that the Angelis Defendants, forthwith, pay the costs of the plaintiffs to date in a lump sum of $1,659,372.63.

Associate:

Dated:    22 July 2025

SCHEDULE OF PARTIES