Permark International Interiors Pty Ltd v Amoveo Pty Ltd

Permark International Interiors Pty Ltd brought an action against Amoveo Pty Ltd, and subsequently the plaintiff discontinued the proceedings. The defendants sought costs against the plaintiff’s directors and shareholders, as well as the litigation funder. The court had to determine whether it had the discretion to award costs against non-parties in this situation, and if so, the extent of those costs. The primary legal issue was whether the court could exercise its discretion under the Supreme Court (General Civil Procedure) Rules 2005 and the Supreme Court Act 1986 to order costs against non-parties. The court considered relevant authorities such as Knight v F P Special Assets Ltd, Vestris v Cashman, Yates Property Corp Pty Ltd v Boland, and Manderson M & F Consulting v Incitec Pivot Ltd.

The court noted that while costs are generally awarded against a party, there are circumstances where the court may exercise its discretion to order costs against non-parties. The court examined the nature of the relationship between the parties involved, the extent of the non-parties' involvement in the litigation, and whether the non-parties had any control over the litigation. The court found that the directors and shareholders of the plaintiff company, as well as the litigation funder, were sufficiently involved in the litigation and had the ability to influence the conduct of the proceedings. Consequently, the court determined that it had the discretion to order costs against these non-parties. The court also considered the appropriate amount of costs to be awarded, taking into account the nature and extent of the non-parties' involvement in the litigation.

Following its determination that it had the discretion to award costs against non-parties, the court assessed the appropriate amount of costs to be awarded to the defendants. The court found that the directors and shareholders of the plaintiff company, as well as the litigation funder, were sufficiently involved in the litigation and had the ability to influence the conduct of the proceedings. The court considered the nature and extent of their involvement, as well as the overall conduct of the litigation, in determining the appropriate amount of costs. The court awarded costs against the non-parties, ordering the directors and shareholders of the plaintiff company, as well as the litigation funder, to pay the defendants’ costs of the proceedings.