Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 6)

In the case of Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 6), the plaintiff, Adelaide Brighton Cement Limited, sought costs and other orders against the defendants, Concrete Supply Pty Ltd and others. The plaintiff succeeded on the Debt Claim, the Claim for a contravention of s 286 of the Corporations Act 2001 (Cth), and the DOCA Claim but did not succeed on the Misleading or Deceptive Conduct Claim and the Breach of Trust Claim. The plaintiff sought an order that the defendants pay its costs of the proceeding, and in the alternative, an order that the plaintiff be awarded its costs of the Debt Claim and the DOCA Claim on an indemnity basis. The plaintiff also sought an order that the fourth to sixth defendants pay the first defendant’s costs of and incidental to the proceeding, including its liability to pay costs to the plaintiff. Additionally, the plaintiff sought an order that the second and third defendants be deprived of their right of indemnity out of the assets of the first defendant in respect of their liability for the plaintiff’s costs and in respect of their own costs.

The court considered the appropriate apportionment of costs between the various claims and whether the claims were sufficiently distinct. The court also examined whether it was appropriate to treat the first defendant and the fourth to sixth defendants as, in effect, one party. Furthermore, the court assessed whether it was appropriate to deprive the second and third defendants of their right of indemnity out of the assets of the first defendant in respect of their liability for the plaintiff’s costs and in respect of their own costs. The court determined that the plaintiff's claims were not sufficiently distinct to warrant separate cost assessments, and the various claims were interrelated. The court also found it appropriate to treat the first defendant and the fourth to sixth defendants as one party, given their close association and the fact that the first defendant was represented by the fourth to sixth defendants. Finally, the court held that the second and third defendants were not entitled to the right of indemnity out of the assets of the first defendant, as they had not participated in the proceeding for the purposes of assisting the Court or defending allegations made by the plaintiff against them.

The court made an order that the application for costs and other orders be adjourned for submissions (if any) on the form of the proposed orders as set out in [119] of the reasons delivered this day to Thursday, 9 July 2020 at 9.15 am. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.