Kirwan v Cresvale Far East Ltd (In Liq) (No 2) [2003] NSWCA 29

Kirwan v Cresvale Far East Ltd (In Liq) (No 2) [2003] NSWCA 29

The majority held that separate declarations of Mr Gould's entitlement to indemnity were unnecessary because the Court's earlier reasons setting aside Austin J's contrary orders sufficiently made plain that he had the normal entitlement. However, the question of Mr Gould's entitlement to indemnity was sufficiently discrete, and his ultimate success on that question warranted a costs order in his favour. The appeal and cross-appeal were therefore allowed in part and the earlier declarations and costs orders were varied or set aside accordingly.

Jurisdiction
Australia
Judgment Date
28 February 2003
Procedural Posture
Appeal and Cross Appeal / Orders Following Reasons Delivered on 10 December 2002, on Written Submissions
Outcome
Appeal allowed in part; cross-appeal allowed in part.
Legal Topics
['costs of Appeal' 'cross Appeal Costs' 'entitlement to Indemnity Out of Company Assets' 'declarations' 'allotment of Shares']
['costs' 'civil Procedure' 'corporations'] ['costs of Appeal' 'cross Appeal Costs' 'entitlement to Indemnity Out of Company Assets' 'declarations' 'allotment of Shares']

Case Brief

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Procedural Posture

Appeal and Cross Appeal / Orders Following Reasons Delivered on 10 December 2002, on Written Submissions

Legal Issues

  1. 1 ["Whether declarations should be made as to Mr Gould's entitlement to indemnity out of the assets of Securities." "Whether Far East and Capital should pay Mr Gould's trial costs on the question of whether he should pay costs personally and without a right of indemnity." 'What orders should be made on the appeal and cross-appeal.']

Ratio Decidendi

The majority held that separate declarations of Mr Gould's entitlement to indemnity were unnecessary because the Court's earlier reasons setting aside Austin J's contrary orders sufficiently made plain that he had the normal entitlement. However, the question of Mr Gould's entitlement to indemnity was sufficiently discrete, and his ultimate success on that question warranted a costs order in his favour. The appeal and cross-appeal were therefore allowed in part and the earlier declarations and costs orders were varied or set aside accordingly.

Court Disposition

Appeal allowed in part; cross-appeal allowed in part.

Orders

  • ['On the appeal, appeal allowed in part.' 'Set aside declaration 7 made on 8 March 2001.' 'Vary declarations 5 and 6 made on 8 March 2001 by adding at the commencement of declaration 5 "Upon condition that the first defendant repay to the fourth defendant the sum of $100,000 subscribed for the shares", and by adding...