Toal v Aquarius Platinum Limited (No 2) [2004] FCA 678

Toal v Aquarius Platinum Limited (No 2) [2004] FCA 678

Special features justified indemnity costs: applicants’ entitlement arose under a court-sanctioned scheme; respondents’ prolonged and dismissive refusal to recognise their entitlement; and the relief granted matched the applicants’ original claim. Given the public interest in upholding rights under a scheme of arrangement, and the applicants’ successful pursuit thereof, indemnity costs were awarded, less costs thrown away due to amendments.

Parties
First Applicant: Michael Toal; Second Applicant: Gary Toal; First Respondent: Aquarius Platinum Limited (formerly 'Strategic Platinum Mines Limited'); Second Respondent: Aquarius Platinum (Australia) Limited (formerly 'Aquarius Exploration NL' and 'Aquarius Platinum NL')
Jurisdiction
Australia
Judgment Date
25 June 2004
Procedural Posture
Costs Application Following Judgment / Post Judgment (costs Determination)
Outcome
Indemnity costs awarded to applicants, with reduction for costs thrown away by amendments; respondents also awarded costs thrown away due to amendments.
Legal Topics
Costs, Indemnity Costs, Scheme of Arrangement, Shareholder Rights
Civil Procedure Costs Indemnity Costs Scheme of Arrangement Shareholder Rights

Case Brief

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Parties

Michael Toal

First Applicant

Gary Toal

Second Applicant

Aquarius Platinum Limited (formerly 'Strategic Platinum Mines Limited')

First Respondent

Aquarius Platinum (Australia) Limited (formerly 'Aquarius Exploration NL' and 'Aquarius Platinum NL')

Second Respondent

Procedural Posture

Costs Application Following Judgment / Post Judgment (costs Determination)

Legal Issues

  1. 1 Whether indemnity costs should be awarded to the applicants
  2. 2 Entitlement of respondents to costs occasioned by amendments or abandoned claims

Ratio Decidendi

Special features justified indemnity costs: applicants’ entitlement arose under a court-sanctioned scheme; respondents’ prolonged and dismissive refusal to recognise their entitlement; and the relief granted matched the applicants’ original claim. Given the public interest in upholding rights under a scheme of arrangement, and the applicants’ successful pursuit thereof, indemnity costs were awarded, less costs thrown away due to amendments.

Court Disposition

Indemnity costs awarded to applicants, with reduction for costs thrown away by amendments; respondents also awarded costs thrown away due to amendments.

Orders

  • Respondents to pay applicants’ costs of the application on an indemnity basis.
  • Applicants to pay respondents’ costs thrown away by reason of the last amendments to the application and statement of claim, as well as costs of preparation of submissions regarding those costs (not including costs of affidavit).