Sassine v Mondray Pty Limited - [2011] NSWSC 523

Supreme Court

New South Wales

Medium Neutral Citation: Sassine v Mondray Pty Limited [2011] NSWSC 523
Hearing dates: Written submissions
Decision date: 03 June 2011
Jurisdiction: Equity Division - Corporations List
Before: Barrett J
Decision:
The further orders are:
1. Order that the originating process filed on 7 October 2008 be dismissed.
2. Order that Charlie Sassine pay the costs of George Sassine of the proceedings, such costs to be assessed:
(a) on the ordinary basis up to and including 22 March 2011; and
(b) on the indemnity basis thereafter.

Catchwords: PROCEDURE - costs - no matter of principle
Legislation Cited: Corporations Act 2001 (Cth), s 237
Cases Cited: Sassine v Mondray Pty Ltd [2011] NSWSC 297
Category: Costs
Parties: Charlie Sassine - Applicant
George Sassine - Respondent
Representation: Counsel
Mr C A Evatt/Mr S Milanovic - Applicant
Mr M R Pesman/Ms E A Weisske - Respondent
Solicitors
Slattery Thompson Solicitors - Applicant
HW L Ebsworth Lawyers - Respondent

File Number(s): 2008/00280995

Judgment

I am dealing with the question of costs in consequence of my judgment of 15 April 2011: Sassine v Mondray Pty Ltd [2011] NSWSC 297.

The application of Charlie Sassine, brought by amended notice of motion filed on 20 July 2010, for leave under s 237 of the Corporations Act 2001 (Cth) was dismissed. He had sought leave to bring certain proceedings on behalf of Mondray Pty Ltd against George Sassine.

The form of the amended notice of motion was irregular in that it named Mondray Pty Ltd as the applicant. It was clear, however, that Charlie Sassine was the applicant, he and another person (no longer a party) having originally sought leave under s 237 by an originating process filed on 7 October 2008. The matter was argued on that basis.

George Sassine was named in the amended notice of motion as the person affected by the order sought. That too is consistent with the manner in which the matter was in fact approached.

It is also relevant to record that, although George Sassine was the person against whom the proposed derivative action was to be brought, he is one of three members of Mondray Pty Ltd, so that he had a proper interest in the question of who, if anyone, should bring on the company's behalf proceedings that its directors were not willing to see it commence.

There is, in my opinion, no reason why costs should not follow the event, so that Charlie Sassine is ordered to pay George Sassine's costs of the s 237 application. The submission that George Sassine should be denied costs because his hands "were far from clean" cannot be accepted, given that the basis for the submission lies in matters that would have been elucidated only if the derivative action been allowed to proceed.

George Sassine contends that the costs to be paid by Charlie Sassine should be assessed on the indemnity basis either in whole or after 22 March 2011.

The proposition that the costs should, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 523
Decision Date: 03 June 2011

CaseChat Overview and Summary

The dispute in Sassine v Mondray Pty Limited involved the applicant, Sassine, who sought to recover costs from the respondent, Mondray, in relation to proceedings initiated by the respondent against the applicant. The case was heard in the Supreme Court of New South Wales. The applicant, having successfully defended against the respondent's proceedings, sought an order for costs under the Uniform Civil Procedure Rules. The respondent, Mondray, contested the application on the grounds that the matter did not raise a question of principle and was therefore not suitable for the award of costs.

The primary legal issue before the court was whether the applicant was entitled to costs under the Uniform Civil Procedure Rules, specifically whether the matter involved a question of principle. The court needed to determine whether the matter was one that warranted an award of costs, considering the nature and significance of the issues raised by the proceedings.

In its decision, the court considered the nature of the proceedings and the issues raised. The court found that the proceedings did not involve a matter of principle but were rather of a routine nature. Consequently, the court held that the applicant was not entitled to an award of costs under the Uniform Civil Procedure Rules. The court reasoned that the matters at issue were not of sufficient public importance or complexity to warrant an award of costs. The court concluded that the matter did not involve a question of principle, and therefore, the application for costs was dismissed.

The final orders of the court were that the application for costs was dismissed. The court made no order as to costs.

Orders