Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd trading as trustee of the Aurora Australasia Investment Fund Unit Trust (No 2) [2024] NSWSC 1210

Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd trading as trustee of the Aurora Australasia Investment Fund Unit Trust (No 2) [2024] NSWSC 1210

Costs are apportioned based on relative success and failure of claims and cross-claims: no order for costs on certain claims where the proceedings changed significantly and were resolved or not fully pressed; cross-claimants are to pay the trustee’s costs of the cross-claim; the third cross-defendant (Driver) is to pay one-third of the cross-claimants’ costs, reflecting their partial success; trustee’s costs (excluding specific unsuccessful judicial advice period) may be paid out of trust assets.

Parties
Plaintiff / First Cross Defendant: Aurora Australasia Pty Ltd; First Defendant / Second Cross Defendant: Hunt Prosperity Pty Ltd; Second Defendant / First Cross Claimant: AMHP Pty Ltd; Second Cross Claimant: Adam Hartley; Third Cross Defendant: David Driver
Jurisdiction
Australia
Judgment Date
26 September 2024
Procedural Posture
Equity Proceedings – Costs Determination / Post Judgment, Costs Orders
Outcome
Costs orders made; partial success reflected in apportionment; no winding up.
Legal Topics
Costs, Redemption of Units, Removal of Trustee, Winding Up Company, Equitable Charge, Injunctions
Equity Trusts Corporations Costs Redemption of Units Removal of Trustee Winding Up Company Equitable Charge +1 more

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Parties

Aurora Australasia Pty Ltd

Plaintiff / First Cross Defendant

Hunt Prosperity Pty Ltd

First Defendant / Second Cross Defendant

AMHP Pty Ltd

Second Defendant / First Cross Claimant

Adam Hartley

Second Cross Claimant

David Driver

Third Cross Defendant

Procedural Posture

Equity Proceedings – Costs Determination / Post Judgment, Costs Orders

Legal Issues

  1. 1 Entitlement to costs after partial success and settlements
  2. 2 Should the trustee process the redemption request and/or be removed
  3. 3 Was an equitable charge established over the units

Ratio Decidendi

Costs are apportioned based on relative success and failure of claims and cross-claims: no order for costs on certain claims where the proceedings changed significantly and were resolved or not fully pressed; cross-claimants are to pay the trustee’s costs of the cross-claim; the third cross-defendant (Driver) is to pay one-third of the cross-claimants’ costs, reflecting their partial success; trustee’s costs (excluding specific unsuccessful judicial advice period) may be paid out of trust assets.

Court Disposition

Costs orders made; partial success reflected in apportionment; no winding up.

Orders

  • NOTE the undertaking of David Driver to indemnify Aurora for its solicitor-client costs incurred in these proceedings on condition he is entitled to reimbursement from recovered costs.
  • No order for costs in respect of the proceedings advanced by the Amended Statement of Claim.