Elevate Brandpartners Ltd v Hammond (No 4) [2020] FCA 421

Elevate Brandpartners Ltd v Hammond (No 4) [2020] FCA 421

The applicants may discontinue but must pay respondents’ costs because the proceeding was not futile after undertakings, the general policy applies, and there is no basis for indemnity costs or for only one applicant being solely liable.

Parties
First Applicant: Elevate Brandpartners Ltd (UK Company Number 10159717); Second Applicant: Quayeyeware Pty Ltd (ACN 118 078 274); First Respondent: Linda Hammond; Second Respondent: Allen Jackson Richard Hammond; Fourth Respondent: Dream Bandits Australia Pty Ltd (ACN 630 671 206)
Jurisdiction
Australia
Judgment Date
01 April 2020
Procedural Posture
Application for Leave to Discontinue and Costs Determination / Application for Leave to Discontinue; Costs Orders
Outcome
Leave granted to discontinue, applicants to pay respondents' costs.
Legal Topics
Discontinuance of Proceedings, Costs, Shareholders' Deed, Directors’ Duties
Civil Procedure Commercial Law Corporate Law Discontinuance of Proceedings Costs Shareholders' Deed Directors’ Duties

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Parties

Elevate Brandpartners Ltd (UK Company Number 10159717)

First Applicant

Quayeyeware Pty Ltd (ACN 118 078 274)

Second Applicant

Linda Hammond

First Respondent

Allen Jackson Richard Hammond

Second Respondent

Dream Bandits Australia Pty Ltd (ACN 630 671 206)

Fourth Respondent

Procedural Posture

Application for Leave to Discontinue and Costs Determination / Application for Leave to Discontinue; Costs Orders

Legal Issues

  1. 1 Proper exercise of discretion to award costs when claim discontinued with leave
  2. 2 Whether respondents capitulated by giving undertakings
  3. 3 Whether applicants abandoned the proceeding

Ratio Decidendi

The applicants may discontinue but must pay respondents’ costs because the proceeding was not futile after undertakings, the general policy applies, and there is no basis for indemnity costs or for only one applicant being solely liable.

Court Disposition

Leave granted to discontinue, applicants to pay respondents' costs.

Orders

  • Applicants have leave to discontinue the proceeding by filing a notice of discontinuance within seven days.
  • Applicants are to pay the respondents' costs of the proceeding as agreed or assessed.