ACN 116 149 092 Pty Ltd v Coopers Brewery Ltd (ACN 007 871 409) [2006] FCA 1119

ACN 116 149 092 Pty Ltd v Coopers Brewery Ltd (ACN 007 871 409) [2006] FCA 1119

An order for costs against the plaintiff is appropriate because the plaintiff commenced the proceedings with knowledge that a foreseeable change (the amendment of the articles) would likely render the litigation futile. Having assumed that risk and pursued the claim, the plaintiff cannot avoid a costs order upon discontinuance.

Jurisdiction
Australia
Judgment Date
23 August 2006
Procedural Posture
Civil / Motion for Leave to Discontinue and Costs
Outcome
Leave to discontinue granted to both plaintiff and defendant. Costs ordered against plaintiff for discontinuance. No order as to costs for discontinuance of defendant's cross-claim.
Legal Topics
['discontinuance' 'costs Orders' 'hostile Takeover Proceedings' 'share Transfer' 'company Constitutional Amendment']
['practice and Procedure' 'corporations Law'] ['discontinuance' 'costs Orders' 'hostile Takeover Proceedings' 'share Transfer' 'company Constitutional Amendment']

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Procedural Posture

Civil / Motion for Leave to Discontinue and Costs

Legal Issues

  1. 1 ['Whether leave to discontinue proceedings should be granted' 'Whether costs should be awarded against the plaintiff upon discontinuance']

Ratio Decidendi

An order for costs against the plaintiff is appropriate because the plaintiff commenced the proceedings with knowledge that a foreseeable change (the amendment of the articles) would likely render the litigation futile. Having assumed that risk and pursued the claim, the plaintiff cannot avoid a costs order upon discontinuance.

Court Disposition

Leave to discontinue granted to both plaintiff and defendant. Costs ordered against plaintiff for discontinuance. No order as to costs for discontinuance of defendant's cross-claim.

Orders

  • ['The plaintiff be granted leave to discontinue the proceedings.' "The plaintiff pay the defendant's costs occasioned by the discontinuance including reserved costs and costs of this motion." 'The defendant be granted leave to discontinue the cross claim.']