DS Clarke Nominees Pty Ltd v Adder Holdings Pty Ltd

DS Clarke Nominees Pty Ltd brought a winding-up application against Adder Holdings Pty Ltd, which was ultimately discontinued. Adder Holdings applied for indemnity costs, arguing that the winding-up application was commenced and continued by DS Clarke in wilful disregard of known facts and without a proper evidentiary foundation. The court was required to determine whether the proceedings were commenced in wilful disregard of known facts, without a proper evidentiary foundation, and whether indemnity costs were appropriate.

The court found that DS Clarke did not have a proper evidentiary foundation for its claims, as evidenced by the refusal of leave for summary judgment and the subsequent amendment of the statement of claim. The court also found that DS Clarke had commenced the proceedings in wilful disregard of known facts, as it had proceeded despite being out of time and without a signed trust deed. The court held that the winding-up application was vexatious and that DS Clarke had acted in bad faith. As a result, the court awarded indemnity costs to Adder Holdings.

The court ordered that DS Clarke pay Adder Holdings' costs of and associated with the application for indemnity costs, as well as the costs of the application itself, on an indemnity basis. The court also ordered that the plaintiff pay the defendant's costs of and associated with this application up to and including 22 September 2014 on an indemnity basis. The orders were made under Rule 39.32 of the Federal Court Rules 2011.