Calvo v Ellimark Pty Ltd (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Calvo v Ellimark Pty Ltd (No 2) [2016] NSWCA 197
Hearing dates:	On the papers
Decision date:	11 August 2016
Before:	Ward JA; Gleeson JA; Leeming JA
Decision:	See [21] of judgment.
Catchwords:	COSTS – partial success on appeal – whether costs at first instance and on appeal should follow the event, or whether fractional costs order should be made
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 101 Contracts Review Act 1980 (NSW)
Cases Cited:	Calvo v Ellimark Pty Ltd [2016] NSWCA 136 Commonwealth of Australia v Gretton [2008] NSWCA 117
Category:	Costs
Parties:	Athalie Calvo as executrix of the estate of the late Peter Calvo (First Appellant) Athalie Calvo (Second Appellant) Ellimark Pty Ltd (First Respondent) Leigh Diane Johnson (Second Respondent)
Representation:	Counsel: P Newton (Appellants) GKJ Rich SC, SA Lawrance (First Respondent) D Allen (Second Respondent)   Solicitors: Stephen Wawn & Associates (Appellants) Arnold Bloch Leibler (First Respondent) McWilliams Lawyers (Second Respondent)
File Number(s):	2015/281258
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 1240 Date of Decision: 31 August 2015 Before: Bergin CJ in Eq File Number(s): 2013/353242

Judgment

1. THE COURT: On 17 June 2016, this Court allowed the appeal, setting aside certain of the orders made by the primary judge, and directed the parties to file and serve submissions as to the further orders appropriate, including as to costs, and whether those orders should be determined on the papers: Calvo v Ellimark Pty Ltd [2016] NSWCA 136. The parties have complied with that regime, constructively, and the result is that the remaining issues between them are of relatively narrow compass – a small point as to the form of the orders, and questions of costs. It is agreed that those issues be determined on the papers.

Orders for the transfer of shares in AIM

2. Ellimark Pty Ltd proposed two minor amendments to the mechanical orders pursuant to which Mrs Calvo would obtain legal title to the 1,250 shares in Australian Institute of Music Ltd (AIM), to one of which Mrs Calvo agreed. There is an outstanding issue whether this Court should impose an obligation not merely upon Ellimark to take all steps required to permit the transfer to be registered, but also, as Mrs Calvo seeks, to ensure that a director nominated by it takes all those steps. It is not appropriate for those additional obligations to be imposed. For one thing, Mrs Calvo’s proposed formulation imposes an obligation, enforceable by contempt, to ensure a nominated director takes steps. It is difficult to see how Ellimark, the company, could ensure its director (the natural person) to do something; the company, after all, can only act through its agents. For another, it is not entirely clear that it is necessary for Ellimark to nominate a director in order for the transfer to be registered.

3. The final orders will require Ellimark to take…