Beenleigh Housing and Development Company Ltd v Isaiah Jumeirah Kahrter Pty Ltd as trustee for the Isjuka Trust (No 2)

Beenleigh Housing and Development Company Ltd filed a proceeding against Isaiah Jumeirah Kahrter Pty Ltd as trustee for the Isjuka Trust, and Nelson Leon, seeking various declarations and remedies. The defendants subsequently brought an application to dismiss the plaintiff’s claim, which was ultimately dismissed. The plaintiff cross-applied for a declaration under s 1322(4) of the Corporations Act 2001 (Cth), which was also dismissed. The plaintiff then sought costs of the application and cross-application from both defendants. Isaiah Jumeirah Kahrter Pty Ltd sought costs on the standard basis, while Nelson Leon was sought to pay costs on the indemnity basis. The defendants argued against any costs order, citing late service of material and the need to reserve costs pending a limitation of liability provision construction at trial.

The court had to determine whether there should be no order as to costs due to the plaintiff’s late service of material, whether costs should be reserved until the limitation of liability provision is properly construed at trial, and if any costs order against Nelson Leon should be limited to the costs incurred up to the date he elected not to proceed as a party. Additionally, the court needed to decide whether the interests of justice required any costs order against Nelson Leon post his withdrawal from the application and whether he should pay costs on the indemnity basis.

The court found that there should be no order as to costs regarding the late service of material as it did not significantly impact the fairness of the proceedings. The court also determined that costs should not be reserved until the limitation of liability provision is properly construed at trial. Regarding Nelson Leon, the court held that while he elected not to proceed as a party, the interests of justice required him to pay costs incurred up to his withdrawal date on the indemnity basis. The court further held that Nelson Leon should pay costs incurred after his withdrawal on the indemnity basis, considering the circumstances of the case.

The court ordered that leave be granted to the plaintiff to read the affidavit of David Alastair Graham. The cross-application brought by the plaintiff was dismissed. The defendants were ordered to pay the plaintiff's costs of the application and the cross-application, with specific provisions for each defendant. The costs payable by Isaiah Jumeirah Kahrter Pty Ltd were to be calculated on the standard basis, subject to agreement or trial determination, and not assessed or payable until the proceeding ended. The costs payable by Nelson Leon were to be calculated on the indemnity basis. The court also granted the parties liberty to apply regarding the costs reserved on certain dates, provided they gave three days' notice.