Tamaya Resources Limited (in liq) v Claymore Capital Pty Ltd (No 2)

Tamaya Resources Limited (in liquidation) sought indemnity costs from Claymore Capital Pty Ltd in relation to proceedings in the Federal Circuit Court of Australia. The dispute centred on the recovery of four payments totalling $472,647.23 that Tamaya made to Claymore. The liquidators argued that Tamaya was insolvent at the time of the payments, rendering them recoverable under section 588FA of the Corporations Act 2001 (Cth). The primary legal issue before the court was whether Claymore should be ordered to pay indemnity costs for the period from 8 March 2013, following an offer of compromise. The court examined the conditions under rule 25.14(3) of the Federal Court Rules 2011 (Cth) and determined that the conditions were met. The court found that while the plaintiffs were entitled to indemnity costs from the date of the offer of compromise, it was not appropriate to award such costs for the period prior to this date, as the issue of insolvency was complex and required proof.

The court concluded that the plaintiffs were entitled to indemnity costs for the period following the offer of compromise, but not for the earlier period. It applied a 70% rate to the professional costs, resulting in a lower indemnity cost amount than that claimed by the plaintiffs. The court also addressed the plaintiffs' application for costs in a lump sum under rule 40.02(b) of the Federal Court Rules 2011 (Cth), finding that the total costs were reasonable and appropriate for such an award. The court ordered Claymore to pay the plaintiffs' costs of and incidental to these proceedings in a lump sum of $433,003.67. Additionally, the court ordered Claymore to pay the judgment sum of $220,000 plus interest in accordance with relevant statutory provisions.