Links Golf Tasmania Pty Ltd v Sattler (No 2)

Links Golf Tasmania Pty Ltd v Sattler (No 2) involved a dispute between Links Golf Tasmania Pty Ltd, acting as a plaintiff on behalf of the company, and Sattler. The plaintiffs had been granted leave to initiate proceedings under section 237 of the Corporations Act 2001, and the company was ordered to cover the plaintiffs' reasonable costs associated with bringing the proceedings. After the company was found to be substantially unsuccessful, it was ordered to pay 85% of the defendants' costs. The plaintiffs sought to have the order varied so they would be responsible for their own solicitor/client costs rather than the company, as permitted under section 242(a) of the Corporations Act 2001. The plaintiffs argued that the proceedings were conducted in line with legal advice, despite some difficulties with certain claims that were eventually abandoned. They also sought to challenge the jurisdiction of the court to order non-parties to pay costs in place of the party to the proceeding and to determine whether the costs liability should be absolute or proportional.

The court examined the relevant factors to exercise its discretion under section 242 of the Corporations Act 2001, considering whether the costs were unreasonably inflated or the claim unmeritorious. The plaintiffs' assertion that the proceedings were conducted in accordance with legal advice, despite difficulties with certain grounds, was weighed against the court's discretion to order costs variations. The court also considered whether the plaintiffs should bear the party/party costs of the successful defendants, as per section 242(c) of the Corporations Act 2001, and the jurisdiction to order non-parties to pay costs in place of the party to the proceeding. Ultimately, the court decided that the order should be varied to reflect the intent of the court as expressed in the reasons published. The plaintiffs were to pay 60% of the defendants' costs, and the parties were granted leave to apply for further variation of the order if necessary.

The court's final orders included varying the previous order to reflect that the plaintiffs should pay 60% of the defendants' costs. The plaintiffs were also ordered to pay 85% of the defendants' costs of the interlocutory process and certain other costs, subject to specific exclusions. Peter Andrew Wood and Justin Charles Hetrel were to indemnify the plaintiffs for half of the costs payable to the defendants under the previous order and were to pay the defendants' costs of their Interlocutory Application filed on 2 August 2012. The defendants' Interlocutory Application filed on 11 October 2012 was stood over, and the costs of that application were reserved. The parties were granted leave to apply for further variation of the order if necessary.