Giabal Pty Ltd v Gunns Plantations Ltd (in liquidation) [2023] NSWSC 184

Giabal Pty Ltd v Gunns Plantations Ltd (in liquidation) [2023] NSWSC 184

The revocation of leave to proceed against the first and second defendants, based on lack of funds, did not determine the plaintiffs' claims, did not make the first and second defendants successful parties or the plaintiffs unsuccessful parties, and was not an "event" for the purposes of the general costs rule. In the absence of a merits determination, and because the plaintiffs' reasons for not accepting the Calderbank offers were objectively cogent, the plaintiffs had not acted unreasonably and the proper exercise of the costs discretion was to make no order as to costs between those parties.

Jurisdiction
Australia
Judgment Date
02 March 2023
Procedural Posture
Costs Application in Equity Proceedings / Notice of Motion by the First and Second Defendants Seeking Costs After Revocation of Leave to Proceed Against Them
Outcome
No order as to costs as between the plaintiffs and the first and second defendants, with those parties to bear their own costs.
Legal Topics
['costs Discretion' 'general Rule That Costs Follow the Event' 'calderbank Offers' 'indemnity Costs' 'leave to Proceed Against Companies in Liquidation' 'settlement Approval']
['civil Procedure' 'costs' 'corporations'] ['costs Discretion' 'general Rule That Costs Follow the Event' 'calderbank Offers' 'indemnity Costs' 'leave to Proceed Against Companies in Liquidation' 'settlement Approval']

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings / Notice of Motion by the First and Second Defendants Seeking Costs After Revocation of Leave to Proceed Against Them

Legal Issues

  1. 1 ['Whether the revocation of leave to proceed against the first and second defendants was an "event" for the purposes of the general rule as to costs in Uniform Civil Procedure Rules 2005 (NSW), r 42.1.' "Whether the plaintiffs' failure to accept any Calderbank offers made by the first and second defendants was unreasonable in the circumstances." "Whether the Court should order the plaintiffs to pay the first and second defendants' costs on an indemnity basis or ordinary basis, or make no order as to costs."]

Ratio Decidendi

The revocation of leave to proceed against the first and second defendants, based on lack of funds, did not determine the plaintiffs' claims, did not make the first and second defendants successful parties or the plaintiffs unsuccessful parties, and was not an "event" for the purposes of the general costs rule. In the absence of a merits determination, and because the plaintiffs' reasons for not accepting the Calderbank offers were objectively cogent, the plaintiffs had not acted unreasonably and the proper exercise of the costs discretion was to make no order as to costs between those parties.

Court Disposition

No order as to costs as between the plaintiffs and the first and second defendants, with those parties to bear their own costs.

Orders

  • ['No order as to costs as between the plaintiffs and the first and second defendants to the intent that, as between them, those parties bear their own costs.']