Twigg v Twigg (No 6); Lambert v Twigg Investments Pty Ltd (No 5) [2020] NSWSC 1856

Twigg v Twigg (No 6); Lambert v Twigg Investments Pty Ltd (No 5) [2020] NSWSC 1856

Plaintiffs did substantially better than the offers made under Calderbank principles; refusal of offer by Max was unreasonable given knowledge and opportunity; indemnity costs awarded for Main Proceeding and UBE Proceeding (90%), previous freezing order costs order not disturbed as made by consent; trust assets apportioned according to plaintiffs' percentage interests, successful cross-defendants awarded costs; freezing order continued on assets for appeal, with payment of legal costs allowed.

Parties
First Plaintiff, First Cross Defendant, Third Plaintiff (ube): Diane Twigg; Second Plaintiff, Second Cross Defendant: Ipswich Landfill Pty Ltd atf Ipswich Landfill Trust; Third Plaintiff, Third Cross Defendant: Brooklyn Landfill & Waste Recycling Pty Ltd; Fourth Plaintiff, Fourth Cross Defendant: Twigg Plant Hire Pty Ltd; First Defendant, Fifth Cross Defendant, Second Defendant (ube): Maxwell James Twigg; Second Defendant, Sixth Cross Defendant: Twigg Landfill Pty Ltd; Third Defendant, Seventh Cross Defendant: Byron Bay Beach Hotel Properties Pty Ltd; Fourth Defendant, Eighth Cross Defendant: Twigg Consulting Pty Ltd; Fifth Defendant, Ninth Cross Defendant: B Bay H Pty Ltd; Sixth Defendant, Tenth Cross Defendant, First Defendant (ube): Twigg Investments Pty Ltd; Seventh Defendant, Eleventh Cross Defendant: Maly Holdings Pty Ltd; Eighth Defendant, Twelfth Cross Defendant: Twigg Property Development Pty Ltd; Ninth Defendant, Thirteenth Cross Defendant: Twigg Motor Sport Pty Ltd; Tenth Defendant, Fourteenth Cross Defendant: Vision Motor Sport Pty Ltd; Eleventh Defendant, Fifteenth Cross Defendant: Twigg Motor Racing Pty Ltd; Twelfth Defendant, Sixteenth Cross Defendant: Surf Street Holdings Pty Ltd; Thirteenth Defendant, Seventeenth Cross Defendant: W & E Twigg Pty Ltd; Fourteenth Defendant, Cross Claimant, First Plaintiff (ube): Frances Lambert; Fifteenth Defendant: Twigg Co Pty Limited; Second Plaintiff (ube): Elizabeth Flintoff; First Defendant (ube): Twigg Investments Pty Limited atf Twigg Investments Trust; Second Defendant (ube): Maxwell Twigg
Jurisdiction
Australia
Judgment Date
18 December 2020
Procedural Posture
Equity Commercial List / Post Judgment, Determination of Costs and Final Orders
Outcome
Costs largely awarded to plaintiffs on indemnity basis; some costs apportioned; freezing order continued; cross-claim costs order in favour of cross-defendants; short stay granted.
Legal Topics
Costs, Offer of Compromise, Freezing Order, Apportionment of Trust Assets, Tracing
Equity Civil Procedure Costs Offer of Compromise Freezing Order Apportionment of Trust Assets Tracing

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Parties

Diane Twigg

First Plaintiff, First Cross Defendant, Third Plaintiff (ube)

Ipswich Landfill Pty Ltd atf Ipswich Landfill Trust

Second Plaintiff, Second Cross Defendant

Brooklyn Landfill & Waste Recycling Pty Ltd

Third Plaintiff, Third Cross Defendant

Twigg Plant Hire Pty Ltd

Fourth Plaintiff, Fourth Cross Defendant

Maxwell James Twigg

First Defendant, Fifth Cross Defendant, Second Defendant (ube)

Twigg Landfill Pty Ltd

Second Defendant, Sixth Cross Defendant

Byron Bay Beach Hotel Properties Pty Ltd

Third Defendant, Seventh Cross Defendant

Twigg Consulting Pty Ltd

Fourth Defendant, Eighth Cross Defendant

B Bay H Pty Ltd

Fifth Defendant, Ninth Cross Defendant

Twigg Investments Pty Ltd

Sixth Defendant, Tenth Cross Defendant, First Defendant (ube)

Maly Holdings Pty Ltd

Seventh Defendant, Eleventh Cross Defendant

Twigg Property Development Pty Ltd

Eighth Defendant, Twelfth Cross Defendant

Twigg Motor Sport Pty Ltd

Ninth Defendant, Thirteenth Cross Defendant

Vision Motor Sport Pty Ltd

Tenth Defendant, Fourteenth Cross Defendant

Twigg Motor Racing Pty Ltd

Eleventh Defendant, Fifteenth Cross Defendant

Surf Street Holdings Pty Ltd

Twelfth Defendant, Sixteenth Cross Defendant

W & E Twigg Pty Ltd

Thirteenth Defendant, Seventeenth Cross Defendant

Frances Lambert

Fourteenth Defendant, Cross Claimant, First Plaintiff (ube)

Twigg Co Pty Limited

Fifteenth Defendant

Elizabeth Flintoff

Second Plaintiff (ube)

Twigg Investments Pty Limited atf Twigg Investments Trust

First Defendant (ube)

Maxwell Twigg

Second Defendant (ube)

Procedural Posture

Equity Commercial List / Post Judgment, Determination of Costs and Final Orders

Legal Issues

  1. 1 Whether indemnity costs should be awarded based on offers of compromise
  2. 2 Appropriate apportionment and distribution of trust assets after tracing
  3. 3 Basis for altering previous costs orders related to freezing order application

Ratio Decidendi

Plaintiffs did substantially better than the offers made under Calderbank principles; refusal of offer by Max was unreasonable given knowledge and opportunity; indemnity costs awarded for Main Proceeding and UBE Proceeding (90%), previous freezing order costs order not disturbed as made by consent; trust assets apportioned according to plaintiffs' percentage interests, successful cross-defendants awarded costs; freezing order continued on assets for appeal, with payment of legal costs allowed.

Court Disposition

Costs largely awarded to plaintiffs on indemnity basis; some costs apportioned; freezing order continued; cross-claim costs order in favour of cross-defendants; short stay granted.

Orders

  • Pls recover costs of Main Proceeding from 15 May 2020 on indemnity basis from first to thirteenth and fifteenth defendants.
  • Pls recover 90 percent of costs of UBE Proceeding on indemnity basis from first defendant; no order against second defendant (Max) in UBE.