Re Aquaqueen International Pty Ltd

In the case of Re Aquaqueen International Pty Ltd, the dispute arose out of extensive litigation between the parties. Aquaqueen International Pty Ltd, the respondent, was involved in a protracted legal battle with the appellant. The matter was heard in the Supreme Court of New South Wales, where the primary focus was on the allocation of costs incurred during the litigation. The court was tasked with determining whether a gross sum costs order should be made under s 98(4)(c) of the Civil Procedure Act 2005 (NSW), considering the conduct of the director or the unsuccessful party that substantially increased the costs, as well as the insolvency and winding up of the respondent.

The court had to decide whether the costs incurred by the appellant should be awarded on a gross sum basis, taking into account the substantial increase in costs due to the conduct of the director or the unsuccessful party. Additionally, the court needed to determine if an order for costs on an indemnity basis was appropriate. Another key issue was whether a personal costs order should be made against the director who appeared with leave on behalf of the company, given that their conduct prolonged the litigation.

The court reasoned that given the extensive litigation and the significant increase in costs due to the conduct of the director, a gross sum costs order was warranted. The court found that the unsuccessful party's conduct substantially contributed to the escalation of costs, and thus, it was appropriate to make such an order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW). Furthermore, the court determined that the director's conduct warranted a personal costs order, as their actions prolonged the litigation. Consequently, the court ordered that the appellant pay the respondent's costs on a gross sum basis and that the director personally pay a portion of the costs.