Diamond Ace Super Fund Pty Ltd v Rodapa Development Pty Ltd

The applicants, Diamond Ace Super Fund Pty Ltd and others, sought an order for costs against the respondents, Rodapa Development Pty Ltd and others, and Mr David Hunt in the Federal Court of Australia. The applicants had initiated proceedings against the respondents, who were trustees of various trusts, alleging improper administration and potential dissipation of trust funds. The substantive proceeding was dismissed, and the applicants now sought costs on the ordinary basis, including against Mr Hunt, who was a director of the respondent companies. The court had to determine whether the second and third respondents had effectively surrendered or capitulated to the applicants' claims, thereby warranting an award of costs. Additionally, the court had to consider whether a non-party, Mr Hunt, could be held liable for costs due to his role and interest in the proceedings. The court found that the second and third respondents had indeed surrendered to the applicants' claims by consenting to the appointment of new trustees without contesting the applicants' allegations. This surrender was a strong ground for awarding costs to the applicants. The court also found that Mr Hunt, by funding the respondents' opposition and having a personal interest in the proceedings, was liable for costs. Consequently, the court made an order that the second and third respondents, as well as Mr Hunt, were jointly and severally liable for the applicants' costs on the ordinary basis.