Sharif v Vitruvian Investments Pty Ltd (No 5) [2024] FCA 134

Sharif v Vitruvian Investments Pty Ltd (No 5) [2024] FCA 134

An indemnity costs order was justified against all Vitruvian Defendants due to the unreasonable and calculated conduct of Mr Gregory in effecting the cancellation of shares and deliberately restructuring evidence, as well as the pursuit of unmeritorious positions in the proceedings, all of which went beyond the merits of the underlying claim and were manifest in the conduct of the proceedings. Reasonableness of the amount recovered remains subject to supervision, with deductions applied for work by non-registered practitioners, withdrawn claims, and interlocutory applications where costs were ordered against Mr Sharif.

Parties
Plaintiff (wad 127 of 2022); Defendant (wad 153 of 2022): Ahmad Walid Obaid Sharif; First Defendant (wad 127 of 2022); Plaintiff (wad 153 of 2022): Vitruvian Investments Pty Ltd; Second Defendant (wad 127 of 2022): Jonathan Charles Gregory; Third Defendant (wad 127 of 2022): J & S Gregory Pty Ltd; Fourth Defendant (wad 127 of 2022): VFormTrain Pty Ltd
Jurisdiction
Australia
Judgment Date
28 February 2024
Procedural Posture
Costs Application in Civil Proceedings (corporations/oppression/declaratory Relief) / Post Trial; Assessment of Lump Sum Costs Following Substantive Judgment
Outcome
Judgment for Ahmad Walid Obaid Sharif as to costs; orders for lump sum indemnity costs with setoffs for interlocutory applications; costs apportioned between joined proceedings.
Legal Topics
Costs – Lump Sum Assessment, Indemnity Costs, Party/party and Solicitor/client Costs, Corporations – Oppression Remedies, Costs – Apportionment in Related Proceedings
Corporations Law Civil Procedure Commercial Law Costs – Lump Sum Assessment Indemnity Costs Party/party and Solicitor/client Costs Corporations – Oppression Remedies Costs – Apportionment in Related Proceedings

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Parties

Ahmad Walid Obaid Sharif

Plaintiff (wad 127 of 2022); Defendant (wad 153 of 2022)

Vitruvian Investments Pty Ltd

First Defendant (wad 127 of 2022); Plaintiff (wad 153 of 2022)

Jonathan Charles Gregory

Second Defendant (wad 127 of 2022)

J & S Gregory Pty Ltd

Third Defendant (wad 127 of 2022)

VFormTrain Pty Ltd

Fourth Defendant (wad 127 of 2022)

Procedural Posture

Costs Application in Civil Proceedings (corporations/oppression/declaratory Relief) / Post Trial; Assessment of Lump Sum Costs Following Substantive Judgment

Legal Issues

  1. 1 Should lump sum costs be assessed on an indemnity basis rather than party/party?
  2. 2 Are there special/unusual features justifying indemnity costs?
  3. 3 Should any adjustments be made for costs unreasonably incurred or unreasonable in amount?

Ratio Decidendi

An indemnity costs order was justified against all Vitruvian Defendants due to the unreasonable and calculated conduct of Mr Gregory in effecting the cancellation of shares and deliberately restructuring evidence, as well as the pursuit of unmeritorious positions in the proceedings, all of which went beyond the merits of the underlying claim and were manifest in the conduct of the proceedings. Reasonableness of the amount recovered remains subject to supervision, with deductions applied for work by non-registered practitioners, withdrawn claims, and interlocutory applications where costs were ordered against Mr Sharif.

Court Disposition

Judgment for Ahmad Walid Obaid Sharif as to costs; orders for lump sum indemnity costs with setoffs for interlocutory applications; costs apportioned between joined proceedings.

Orders

  • The costs of the proceedings in WAD 127 of 2022 and WAD 153 of 2022 be assessed as a single set of costs with due allowance for the extent to which any of those costs related solely to the proceedings in WAD 153 of 2022.
  • In WAD 127 of 2022, the defendants do pay the plaintiff the amount of $969,061.34 (inclusive of GST) in respect of his costs.