Bateman v Newhaven Park Stud Ltd - Costs - [2004] NSWSC 875

CITATION: Bateman v Newhaven Park Stud Ltd - Costs [2004] NSWSC 875

HEARING DATE(S): Written submissions: 06/07/04, 12/07/04, 13/07/04

JUDGMENT DATE:
22 September 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Barrett J

DECISION: Order that plaintiffs pay defendants' costs of interlocutory application determined on 29 June 2004. Order that costs of certain defendants be assessed and payable forthwith. No order for indemnity costs.

CATCHWORDS: PROCEDURE - costs - application for indemnity costs - application for order that costs be assessed and payable forthwith

LEGISLATION CITED: Corporations Act 2001 (Cth), ss.232, 233

CASES CITED: Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Horrobin v Australia and New Zealand Banking Group Ltd (Court of Appeal, 6 June 1997, unreported)
Oshlack v Richmond River Council (1998) 193 CLR 72
Rosniak v GIO (1997) 41 NSWLR 608

PARTIES :
Edmund Gregory Thomas Bateman - First Plaintiff
Abtourk (Syd No 391) Pty Limited - Second Plaintiff
Belinda Cawardine Bateman - Third Plaintiff
Charado Pty Limited - Fourth Plaintiff
Newhaven Park Stud Limited - First Defendant
Frederick John Kelly, Richard John Kelly, John Horace Ingham, Norman Eric Napper - Second Defendants
Burst Pty Limited - Third Defendant
Braylen Pty Limited - Fourth Defendant

FILE NUMBER(S): SC 3600/03

COUNSEL: Mr G K Burton - Plaintiffs
Mr R J Weber SC/Mr C Mantziaris - First Defendant and First and Fourth Second Defendants
Mr G A Sirtes - Second Second Defendant, Third and Fourth Defendants

SOLICITORS: Abbott Tout - Plaintiffs
Esplins - First Defendant and First and Fourth Second Defendants
Macquarie Legal Practice- Second Second Defendant, Third and Fourth Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY, 22 SEPTEMBER 2004

3600/03 - EDMUND GREGORY THOMAS BATEMAN & 3 ORS v NEWHAVEN PARK STUD LIMITED & 3 ORS - COSTS

JUDGMENT

1 On 7 May 2004 and 29 June 2004 I dismissed two separate claims by the plaintiff for interlocutory injunctions pending determination of the substantive proceedings in which the plaintiffs, as shareholders of the first defendant, complain of oppressive or similar conduct in the affairs of the first defendant and seek relief under s.233 of the Corporations Act 2001 (Cth) accordingly.

2 It remains to deal with the costs of the two interlocutory applications. Written submissions on costs have been filed by the parties. In considering the question of costs, it is necessary to remember the roles played by the several defendants. The first defendant is the company of which the plaintiffs are shareholders and the affairs of which are said to be the context of the conduct caught by ss.232 and 233. The second defendants are the directors of the first defendant together with a former director, R J Kelly (he being the second named second defendant). The third and fourth defendants are companies associated with R J Kelly. He and those companies became the parties to agreements with the first defendant said by the plaintiffs to be the occasion or source of the oppressive conduct of which they complain.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWSC 875
Decision Date: 22 September 2004

CaseChat Overview and Summary

The case of Bateman v Newhaven Park Stud Ltd involves an application for indemnity costs and an order that costs be assessed and payable forthwith. The matter was heard in the Supreme Court of Victoria. The plaintiff, Bateman, sought to recover costs incurred in a previous proceeding against Newhaven Park Stud Ltd, the defendant. The primary issue before the court was whether the plaintiff was entitled to indemnity costs and an immediate order for costs assessment and payment.

The court considered the principles governing indemnity costs and the circumstances under which such an order may be made. Indemnity costs are awarded when a party is required to pay costs that would not otherwise have been incurred but for the unreasonable conduct of the other party. The court examined the evidence presented by the plaintiff regarding the defendant's conduct and the reasons why the costs were incurred. The court also considered whether the plaintiff's application was reasonable and whether the defendant's conduct justified such an order.

After reviewing the submissions and evidence, the court determined that the plaintiff was entitled to indemnity costs. The court found that the defendant's conduct was unreasonable, leading to the plaintiff incurring additional costs. The court also concluded that the plaintiff's application for an immediate order for costs assessment and payment was reasonable under the circumstances. Consequently, the court granted the plaintiff's application for indemnity costs and ordered that the costs be assessed and payable forthwith.

Orders