In the matter of Featherston Resources Limited (Receiver and Manager Appointed) (Administrators Appointed) (New Zealand Company Number 887809) (No 2) [2014] NSWSC 1887

In the matter of Featherston Resources Limited (Receiver and Manager Appointed) (Administrators Appointed) (New Zealand Company Number 887809) (No 2) [2014] NSWSC 1887

The ninth defendant was justified in making a Calderbank walk-away offer rather than an offer of compromise under the Rules, and it plainly bettered that offer when the plaintiffs' proceedings were dismissed with costs; therefore its costs should be assessed on the indemnity basis from 18 June 2014. There was no reason to defer the costs order because this Court determined and dismissed the application for leave under s 236 or in the inherent jurisdiction, and it was the proper court to determine the costs of that application.

Jurisdiction
Australia
Judgment Date
22 August 2014
Procedural Posture
Application for Leave Under S 236 or Alternatively in the Inherent Jurisdiction to Bring Proceedings in This Court; Costs Application / Ex Tempore Judgment on Costs After Dismissal of the Proceedings
Outcome
Proceedings dismissed; plaintiffs ordered to pay defendants' costs, with the ninth defendant's costs on the indemnity basis from 18 June 2014.
Legal Topics
['calderbank Offer' 'indemnity Costs' 'offer of Compromise' 'deferral of Costs' 'derivative Proceedings Leave' 'jurisdiction']
['procedure' 'costs' 'corporations'] ['calderbank Offer' 'indemnity Costs' 'offer of Compromise' 'deferral of Costs' 'derivative Proceedings Leave' 'jurisdiction']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave Under S 236 or Alternatively in the Inherent Jurisdiction to Bring Proceedings in This Court; Costs Application / Ex Tempore Judgment on Costs After Dismissal of the Proceedings

Legal Issues

  1. 1 ["Whether the ninth defendant's costs should be assessed on the indemnity basis from 18 June 2014 because its Calderbank offer was more favourable to the plaintiffs than the outcome of the hearing." 'Whether the Court should defer making a costs order because issues may be litigated in New Zealand proceedings.' 'Whether reserved costs should be included as costs of the proceedings.']

Ratio Decidendi

The ninth defendant was justified in making a Calderbank walk-away offer rather than an offer of compromise under the Rules, and it plainly bettered that offer when the plaintiffs' proceedings were dismissed with costs; therefore its costs should be assessed on the indemnity basis from 18 June 2014. There was no reason to defer the costs order because this Court determined and dismissed the application for leave under s 236 or in the inherent jurisdiction, and it was the proper court to determine the costs of that application.

Court Disposition

Proceedings dismissed; plaintiffs ordered to pay defendants' costs, with the ninth defendant's costs on the indemnity basis from 18 June 2014.

Orders

  • ['The proceedings be dismissed.' 'The plaintiffs pay the defendants costs of the proceedings, including reserved costs.' "The ninth defendant's costs be assessed and payable on the indemnity basis from 18 June 2014." 'The above orders are without prejudice to any right of the administrator to apply to the Court in...