Tulla Resources Group Pty Ltd v Minroc Quarries Pty Ltd & Anor [2016] NSWSC 134

Tulla Resources Group Pty Ltd v Minroc Quarries Pty Ltd & Anor [2016] NSWSC 134

Apart from the reference, neither party conducted the proceedings unreasonably and neither party was shown to be certain to have succeeded on any aspect of the proceedings. In the reference, Minroc unreasonably continued to put most disputed items in issue and Tulla in substance succeeded because the referee found almost the whole of Tulla's claimed shareholder loans to be justified and Minroc completed the transaction on the basis of the referee's determination. Minroc therefore had to pay Tulla's costs of the reference on the ordinary basis, but indemnity costs were not warranted because wilful misuse of the reference process was not demonstrated.

Jurisdiction
Australia
Judgment Date
26 February 2016
Procedural Posture
Costs Determination in Equity Proceedings Concerning Specific Performance of a Call Option and a Cross Claim / After Proceedings Were Resolved by Consent, With Final Costs to Be Determined
Outcome
The first defendant/cross-claimant was ordered to pay the plaintiff's costs of the reference on the ordinary basis; otherwise each party was to bear its own costs of the proceedings, including the costs argument.
Legal Topics
['costs After Settlement or Agreed Outcome' 'ordinary Costs and Indemnity Costs' 'reference to Referee' 'call Option Over Shares' 'shareholder Loans' 'specific Performance' 'cross Claim Concerning Loan Securities']
['civil Procedure' 'costs' 'equity' 'corporations and Joint Ventures' 'contract'] ['costs After Settlement or Agreed Outcome' 'ordinary Costs and Indemnity Costs' 'reference to Referee' 'call Option Over Shares' 'shareholder Loans' 'specific Performance' 'cross Claim Concerning Loan Securities']

Case Brief

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Procedural Posture

Costs Determination in Equity Proceedings Concerning Specific Performance of a Call Option and a Cross Claim / After Proceedings Were Resolved by Consent, With Final Costs to Be Determined

Legal Issues

  1. 1 ['Whether one or other party acted so unreasonably that the other party should obtain the costs of the action.' 'Whether, despite settlement, the Court could be confident that one party was almost certain to have succeeded if the matter had been fully tried.' 'Whether Tulla was successful on the reference concerning the amount of shareholder loans payable upon exercise of the call option.' 'Whether any costs order should be on the indemnity basis rather than the ordinary basis.']

Ratio Decidendi

Apart from the reference, neither party conducted the proceedings unreasonably and neither party was shown to be certain to have succeeded on any aspect of the proceedings. In the reference, Minroc unreasonably continued to put most disputed items in issue and Tulla in substance succeeded because the referee found almost the whole of Tulla's claimed shareholder loans to be justified and Minroc completed the transaction on the basis of the referee's determination. Minroc therefore had to pay Tulla's costs of the reference on the ordinary basis, but indemnity costs were not warranted because wilful misuse of the reference process was not demonstrated.

Court Disposition

The first defendant/cross-claimant was ordered to pay the plaintiff's costs of the reference on the ordinary basis; otherwise each party was to bear its own costs of the proceedings, including the costs argument.

Orders

  • ["Order the defendant/cross-claimant shall pay on the ordinary basis all the costs of the reference to Dr Ferrier including all the costs of the motion initiating the reference, undertaking the reference, receiving, considering and dealing with the referee's report." 'Order that each party shall otherwise bear its...