Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 513

Nassar v Innovative Precasters Group Pty Ltd [2009] NSWSC 513

The plaintiffs' predominant objective was a buy-out order or relief under ss 232 and 233 of the Corporations Act 2001 (Cth), and they failed to obtain that relief. The proper costs event was therefore their failure to obtain the relief they sought, not the winding up orders. The fourth and fifth defendants were entitled to their costs, while the inactive company defendants should have no costs order. Because the 19 March 2009 offer was more favourable to the plaintiffs than the eventual outcome and was not accepted within a reasonable period, the plaintiffs' continuation of the proceedings from 27 March 2009 was unreasonable and justified indemnity costs from that date.

Jurisdiction
Australia
Judgment Date
10 June 2009
Procedural Posture
Consequential Orders / Costs Consequent Upon Judgment of 1 May 2009
Outcome
Plaintiffs ordered to pay the fourth and fifth defendants' costs, with indemnity costs from and after 27 March 2009; plaintiffs not to be reimbursed from company property; no order as to costs of the first, second and third defendants.
Legal Topics
['costs' 'costs Follow the Event' 'offer of Compromise' 'indemnity Costs' 'winding Up' 'shareholder Oppression']
['civil Procedure' 'corporations'] ['costs' 'costs Follow the Event' 'offer of Compromise' 'indemnity Costs' 'winding Up' 'shareholder Oppression']

Case Brief

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Procedural Posture

Consequential Orders / Costs Consequent Upon Judgment of 1 May 2009

Legal Issues

  1. 1 ['What should be considered the event for the purposes of the general rule that costs follow the event.' 'Whether the plaintiffs should pay the costs of the fourth and fifth defendants and whether there should be any order as to the costs of the first, second and third defendants.' 'Whether the operation of s 466(2) of the Corporations Act 2001 (Cth) should be displaced so the plaintiffs do not recover costs from company assets.' "Whether the fourth and fifth defendants' costs after 19 March 2009 should be assessed on the indemnity basis because the plaintiffs did not accept the offer made on that date." 'Whether the plaintiffs should receive a costs order for their application for appointment of a provisional liquidator.']

Ratio Decidendi

The plaintiffs' predominant objective was a buy-out order or relief under ss 232 and 233 of the Corporations Act 2001 (Cth), and they failed to obtain that relief. The proper costs event was therefore their failure to obtain the relief they sought, not the winding up orders. The fourth and fifth defendants were entitled to their costs, while the inactive company defendants should have no costs order. Because the 19 March 2009 offer was more favourable to the plaintiffs than the eventual outcome and was not accepted within a reasonable period, the plaintiffs' continuation of the proceedings from 27 March 2009 was unreasonable and justified indemnity costs from that date.

Court Disposition

Plaintiffs ordered to pay the fourth and fifth defendants' costs, with indemnity costs from and after 27 March 2009; plaintiffs not to be reimbursed from company property; no order as to costs of the first, second and third defendants.

Orders

  • ['Order that the plaintiffs pay the costs of the fourth defendant and the fifth defendant of the proceedings, such costs to be assessed on the indemnity basis from and after 27 March 2009.' 'Order that the plaintiffs not be reimbursed out of the property of any of the first, second and third defendants the costs...