Kavia Holdings Pty Limited & 1 Ors v Werncog Pty Limited [1999] NSWSC 839

Kavia Holdings Pty Limited & 1 Ors v Werncog Pty Limited [1999] NSWSC 839

Where a party opposing or seeking to impose conditions on an injunction misleads the court, even if inadvertently, the court's discretion is enlivened to impose indemnity costs or vary conditions to signify the importance of the duty of candour and to compensate the innocent party for additional costs occasioned by the resulting further hearing.

Parties
First Plaintiff/cross Defendant (first Cross Claim): Kavia Holdings Pty Limited ACN 050 108 757; Second Plaintiff: Rocks Catering Pty Limited ACN 003 510 656; Defendant/cross Claimant (first and Second Cross Claims): Werncog Pty Limited ACN 065 477 303; Cross Defendant (second Cross Claim): John Anton Szangolies
Jurisdiction
Australia
Judgment Date
18 August 1999
Procedural Posture
Practice and Procedure (equity) / Decision on Costs After Application for Injunction and Misleading the Court
Outcome
Indemnity costs awarded against Defendant for failure of duty of candour.
Legal Topics
Duty of Candour, Costs Orders, Injunctions, Misleading the Court, Solicitor/client Duties
Equity Civil Procedure Duty of Candour Costs Orders Injunctions Misleading the Court Solicitor/client Duties

Case Brief

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Parties

Kavia Holdings Pty Limited ACN 050 108 757

First Plaintiff/cross Defendant (first Cross Claim)

Rocks Catering Pty Limited ACN 003 510 656

Second Plaintiff

Werncog Pty Limited ACN 065 477 303

Defendant/cross Claimant (first and Second Cross Claims)

John Anton Szangolies

Cross Defendant (second Cross Claim)

Procedural Posture

Practice and Procedure (equity) / Decision on Costs After Application for Injunction and Misleading the Court

Legal Issues

  1. 1 Does the duty of candour apply to a defendant seeking to impose conditions on an injunction?
  2. 2 What are the consequences where the court has been misled by a party, even if inadvertent?
  3. 3 Should indemnity costs be awarded for causing unnecessary further hearings by misleading the court?

Ratio Decidendi

Where a party opposing or seeking to impose conditions on an injunction misleads the court, even if inadvertently, the court's discretion is enlivened to impose indemnity costs or vary conditions to signify the importance of the duty of candour and to compensate the innocent party for additional costs occasioned by the resulting further hearing.

Court Disposition

Indemnity costs awarded against Defendant for failure of duty of candour.

Orders

  • The Defendant pay on an indemnity basis the Plaintiffs' costs of and incidental to 18 August 1999 and the Plaintiffs' costs of 27 July 1999.