Barrett JA at [1]; Gleeson JA at [2]; Tobias AJA at [101]
Decision:
(1) Order that Mr Whittingham (the respondent) pay 50 per cent of the appellants' costs of the proceedings in the Court of Appeal.
(2) The respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
(3) Order that Mr Whittingham (the defendant) pay 40 per cent of the plaintiffs' costs of the proceedings in the Equity Division including the costs of:
(a) the application heard by Black J on 13 March 2012; and
(b) the interlocutory application for an injunction heard by Brereton J on 30 September 2009.
(4) The Court declares that the respondent is not entitled any right of indemnity or lien over the property of the second appellant for:
(a) his liability to the appellants for costs in accordance with Orders 1 and 3 above; and
(b) any of his own costs of the proceedings below and of the appeal, with the intent that he personally bear his own costs.
(5) In the event that the amount of remuneration and expenses determined by the primary judge pursuant to the remittal of the respondent's claim in [4], [5] and [6] of the amended interlocutory process filed 20 February 2012 (in accordance with Order 5 made by this Court on 15 August 2013), be less than the amount already paid to the respondent in respect of his claims for remuneration and expenses as the purported administrator and deed administrator of the second appellant, the respondent pay to the second appellant the difference between the amount already paid to him (including property furnished by way of security to the extent that it has not been already reimbursed to the second appellant) and the amount assessed by the primary judge.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PROCEDURE - costs - general rule costs follow the event - where appellants seek costs of the appeal, costs of the application and costs at first instance - where appellants seek an order that the respondent personally bear his own costs of the appeal - where delay in making a claim - whether successful party should be deprived of the costs relating to an issue on which the successful party lost - whether a Deed of Company Arrangement may have binding force independently of the Corporations Act 2001
[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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AGLC
Correa v Whittingham (No 2) [2013] NSWCA 471
Case
[2013] NSWCA 471
Decision Date
CaseChat Overview and Summary
In *Correa v Whittingham (No 2)*, the Court of Appeal of New South Wales considered an appeal and cross-appeal concerning costs orders made in proceedings between the appellants (Correa and others) and the respondent (Whittingham). The dispute involved claims related to the administration of a company and the validity of a Deed of Company Arrangement. The appellants sought to recover their costs of the appeal, the application before the Court of Appeal, and the proceedings at first instance, and also sought an order that the respondent personally bear his own costs of the appeal.
The primary legal issues before the Court of Appeal were whether the successful party should be deprived of costs relating to an issue on which they lost, and whether a Deed of Company Arrangement could have binding force independently of the *Corporations Act 2001* (Cth). The court also had to determine the appropriate apportionment of costs, considering the overall success and failures of the parties in the various stages of the litigation.
The Court of Appeal reasoned that while the general rule is that costs follow the event, the specific circumstances of the case warranted a departure from this rule. The court noted the delay in the respondent making his claim and the fact that the respondent had lost on certain significant issues. Consequently, the court ordered that the respondent pay 50 per cent of the appellants' costs of the appeal and 40 per cent of the plaintiffs' costs in the Equity Division, including the costs of specific interlocutory applications.
The court further declared that the respondent was not entitled to any right of indemnity or lien over the property of the second appellant for his liability to the appellants for costs, nor for any of his own costs of the proceedings. This was intended to ensure that the respondent personally bore his own costs. The court also made orders regarding the remuneration and expenses of the respondent as a purported administrator, requiring him to repay any excess remuneration received.
Orders
Orders of the court
(1) Order that Mr Whittingham (the respondent) pay 50 per cent of the appellants' costs of the proceedings in the Court of Appeal.
(2) The respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified.
(3) Order that Mr Whittingham (the defendant) pay 40 per cent of the plaintiffs' costs of the proceedings in the Equity Division including the costs of:
(a) the application heard by Black J on 13 March 2012; and
(b) the interlocutory application for an injunction heard by Brereton J on 30 September 2009.
(4) The Court declares that the respondent is not entitled any right of indemnity or lien over the property of the second appellant for:
(a) his liability to the appellants for costs in accordance with Orders 1 and 3 above; and
(b) any of his own costs of the proceedings below and of the appeal, with the intent that he personally bear his own costs.
(5) In the event that the amount of remuneration and expenses determined by the primary judge pursuant to the remittal of the respondent's claim in [4], [5] and [6] of the amended interlocutory process filed 20 February 2012 (in accordance with Order 5 made by this Court on 15 August 2013), be less than the amount already paid to the respondent in respect of his claims for remuneration and expenses as the purported administrator and deed administrator of the second appellant, the respondent pay to the second appellant the difference between the amount already paid to him (including property furnished by way of security to the extent that it has not been already reimbursed to the second appellant) and the amount assessed by the primary judge.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]