In the matter of Das Schneider Pty Ltd

In the Federal Court of Australia, the case involved Das Schneider Pty Ltd, a company that had passed into liquidation, and a non-party director who had caused the company to oppose an application to inspect the company's books. The plaintiffs sought an order under section 247A of the Corporations Act 2001 (Cth) to inspect the company's books, which were relevant to their case against the company. After the company liquidated, the liquidator provided the plaintiffs with the documents they sought. The plaintiffs applied for costs from the non-party director, arguing that the director had caused the company to incur costs in opposing the inspection application, which were unnecessary once the liquidator provided the documents.

The court had to determine whether it could make a costs order in favour of the plaintiffs against the non-party director. The plaintiffs argued that the director was responsible for the costs incurred by the company in opposing the inspection application, and that the costs were unnecessary once the liquidator provided the documents. The director argued that the court could not make a costs order against a non-party, and that even if it could, the order should not be made in this case because the costs were not excessive and the plaintiffs had not suffered any loss or damage as a result of the director's actions.

The court held that it had the discretion to make a costs order against a non-party in appropriate circumstances. In this case, the court considered that the director had caused the company to incur costs in opposing the inspection application, which were unnecessary once the liquidator provided the documents. The court also considered that the plaintiffs had suffered a loss or damage as a result of the director's actions, in that they were forced to incur costs in pursuing the inspection application. The court therefore made a costs order in favour of the plaintiffs against the non-party director.

The court ordered that the non-party director pay the plaintiffs' costs of and incidental to the inspection application, to be taxed on an indemnity basis if not agreed. The court also ordered that the costs be paid directly to the plaintiffs, rather than to the company or the liquidator.