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Grace v Grace (No 4)

Grace v Grace (No 4)

Case [2013] NSWSC 385 28 March 2013

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Grace v Grace (No 4) [2013] NSWSC 385
Hearing dates: Thursday 28 March 2013
Decision date: 28 March 2013
Jurisdiction: Equity Division
Before: Brereton J
Decision:
First and second defendants pay 62.5% of plaintiff's costs of proceedings including of cross claim, as assessed.
Extend time for compliance with previous orders.

Catchwords:
COSTS - Where plaintiff successful on the whole but unsuccessful on two significant issues - where unsuccessful claims bear on issues of credit in successful claims - whether plaintiff should be deprived of costs for the unsuccessful claims - whether plaintiff should be liable to defendant for costs for unsuccessful claims - whether claims were clearly definable and severable issues

COSTS - whether apportioning costs should be left to costs assessor

PROCEDURE - application for inquiry as to damages - where plaintiff has given undertaking as to damages in connection with appointment of provisional liquidator - where plaintiff sought winding up order in the alternative - where winding up order not ultimately made but plaintiff placed in control of company
PROCEDURE - Application for extension of time to apply to examine defendants' accounts - where new issues have been raised after time expired - where no prejudice to defendant in granting the extension
Legislation Cited: (Cth) Corporations Act 2001 s 233
Cases Cited: Alessi v The Original Australian Art Co Pty Ltd (1989) 7 ACLC 595
Evans & Associates v European Bank Limited [2009] NSWCA 67
Grace v Grace [2007] NSWSC 6
Griffith v Australian Broadcasting Corporation [2011] NSWCA 145
Hexiva Pty Ltd v Lederer [2006] NSWSC 1259
Macquarie International Health Clinic Pty Ltd v Sydney South-West Area Health Service (No 2) [2011] NSWCA 171
Category: Costs
Parties: David Alexander Grace (plaintiff)
Deborah Sharon Grace (first defendant)
Julienne Grace (second defendant)
Nevilda Holdings Pty Ltd (prov liq'r appted) (third defendant)
Nevilda Investments Pty Ltd (prov liq'r appted) (fourth defendant)
Dutchie Pty Ltd (sixth defendant)
Phoenix Rising Investments Pty Ltd (seventh defendant)
Representation: Counsel:
D Williams SC w S Goodman (plaintiff)
A Moses SC w D Stewart (first, second & seventh defendants)
Solicitors:
James Tuite & Associates (plaintiff)
Clinch Long Letherbarrow Pty Ltd (first, second & seventh defendants)

File Number(s): 2006/259566

Judgment (ex tempore)

HIS HONOUR: The first of the several outstanding matters in these proceedings with which this judgment is concerned is the question of costs. The plaintiff proposes an order to the effect that first and second defendants pay 85% of his costs of the proceedings. The defendants propose orders that they pay the plaintiff's costs on the ordinary basis with respect to the administration case and the cross-claim; that the plaintiff pay their costs on the ordinary basis with respect to the oppression case; and that they pay the plaintiff's costs on the ordinary basis until 10 September 2009, and thereafter the plaintiff pay their costs on the indemnity basis, with respect to the Nevilda Investment Superannuation Fund (NISF) case.

At the outset the plaintiff sought to assert his…

Grounds of appeal

[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.

Continue reading Grace v Grace (No 4)

Details

AGLC: Grace v Grace (No 4) [2013] NSWSC 385
Case: [2013] NSWSC 385
Decision Date: 28 March 2013

CaseChat Overview and Summary

In the matter of Grace v Grace (No 4), the dispute involved the plaintiff's claims against the defendant regarding various financial matters. The case was heard in the Federal Court of Australia, where the plaintiff, Grace, sought a winding-up order as well as damages. The defendant, also Grace, contested these claims. The plaintiff was partially successful in their claims but did not prevail on two significant issues.

The primary legal issues before the court were whether the plaintiff should be deprived of costs for the unsuccessful claims and whether they should be liable to the defendant for costs of those claims. Additionally, the court needed to determine whether the claims were clearly definable and severable issues. The court also considered whether the matter of apportioning costs should be left to the costs assessor.

In its reasoning, the court held that the unsuccessful claims bore on issues of credit in the successful claims, and thus, the plaintiff should not be deprived of costs for the unsuccessful claims. The court found that the claims were not clearly definable and severable issues, and therefore, the plaintiff should not be liable to the defendant for costs of the unsuccessful claims. The court also noted that the matter of apportioning costs should be left to the costs assessor. Finally, the court considered the application for an inquiry as to damages and the application for an extension of time to apply to examine the defendant's accounts, finding no prejudice to the defendant in granting the extension. The court ultimately ruled in favour of the plaintiff on the majority of the claims and ordered the defendant to pay costs to the plaintiff.

Orders