In the matter of OTS (Australia) Pty Ltd

[2017] NSWSC 1472

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of OTS (Australia) Pty Ltd [2017] NSWSC 1472
Hearing dates:	3 March 2017
Decision date:	03 March 2017
Jurisdiction:	Equity - Corporations List
Before:	Brereton J
Decision:	The defendant to pay the plaintiff’s costs on the ordinary basis up to and including 30 June 2016, and thereafter on the indemnity basis.
Catchwords:	COST – indemnity costs – offer of compromise
Legislation Cited:	(NSW) Uniform Civil Procedure Rules 2005
Category:	Costs
Parties:	Cameron Marketing (Australia) Pty Ltd (plaintiff) OTS (Australia) Pty Ltd (first defendant) MLAN Computer Solutions (Aust.) Pty Ltd (second defendant) Mark Raymond Liddle (third defendant) Anthony Andrew Nadalini (fourth defendant)
Representation:	Counsel: M Hall SC (plaintiff) D Stack (defendants)   Solicitors: Atkinson Vinden (plaintiff) ERA Legal (defendants)
File Number(s):	2015/00275597

Judgment

1. On 30 June 2016, the plaintiff made an offer of compromise under Part 20 of the (NSW) Uniform Civil Procedure Rules2005 to the defendants to resolve the proceedings upon terms that the second defendant purchase the plaintiff's shares in the first defendant for the sum of $1.33 million, and that the proceedings and any cross-claim be dismissed. That offer was not accepted. It is self-evident from the judgment I have published that the plaintiff has bettered that offer in these proceedings, having secured a price of $1.8 million. In those circumstances, the Rules provide that the plaintiff is entitled to its costs on the ordinary basis up to and including 30 June 2016, and thereafter, on the indemnity basis, unless the Court otherwise orders.

2. The defendants submit that the Court should otherwise order for the reason that the defendants have always been prepared to, and have offered to, purchase the plaintiff's shareholding at valuation. It is true that from a very early stage in the dispute, and from a very early stage in the proceedings, the defendants have stated that they are prepared to purchase the plaintiff's shareholding at valuation. However, they have never offered the plaintiff a price for the plaintiff's shares. When the plaintiff, by the offer to which I have referred, proposed a specific price less – and substantially less – than that I have ultimately found appropriate, the defendants did not accept that when they could have.

3. When a single expert was appointed and produced a valuation, the defendants, not without merit, disputed that valuation and adduced a competing report which, it will be evident from the reasons I have published, I have also not entirely accepted.

4. The bottom line is that the plaintiff had to bring these proceedings and prosecute them to finality to obtain the relief it got. There was never, along the way, an offer that the plaintiff could have accepted which would have brought an end to the proceedings. In those circumstances, I do not see that a case for departing from the consequences prescribed by the Rules for an unaccepted offer of compromise has been made out.

5. Accordingly, the order of the Court is that the defendants pay the plaintiff's costs on the ordinary basis up to, and, including 30 June 2016 and, thereafter, on the indemnity basis.

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Decision last updated: 26 October 2017