Primary Agricultural Group Pty Ltd v Cowley [2017] NSWSC 74

Primary Agricultural Group Pty Ltd v Cowley [2017] NSWSC 74

The plaintiffs should pay 50% of the second defendant's costs thrown away on the indemnity basis because the exculpatory 25 May 2009 resolutions concerning the Inglewood claim were readily discoverable, should have been discovered with reasonable care and proper consideration, and showed that the claim had no chance of success against him. Indemnity costs were not justified for the Welltree claim because whether finance had been obtained for cl 33 was legally and factually open to argument. All costs thrown away should be assessed and payable forthwith because the abandoned claims were discrete, the plaintiffs' conduct regarding the Inglewood claim was unreasonable, the proceedings had a...

Jurisdiction
Australia
Judgment Date
13 February 2017
Procedural Posture
Costs Application in Equity Proceedings / Judgment on the Second Defendant's Application for Costs Thrown Away by Amendments to Be Paid on the Indemnity Basis and Forthwith
Outcome
The second defendant's application succeeded in substantial part.
Legal Topics
['indemnity Costs' 'costs Thrown Away by Amendment' 'costs Payable Forthwith' 'amendment of Pleadings' "directors' Duties Claim"]
['costs' 'civil Procedure' 'equity'] ['indemnity Costs' 'costs Thrown Away by Amendment' 'costs Payable Forthwith' 'amendment of Pleadings' "directors' Duties Claim"]

Case Brief

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Procedural Posture

Costs Application in Equity Proceedings / Judgment on the Second Defendant's Application for Costs Thrown Away by Amendments to Be Paid on the Indemnity Basis and Forthwith

Legal Issues

  1. 1 ["Whether the second defendant's costs thrown away by reason of the plaintiffs' amendments abandoning the Inglewood and Welltree claims against him should be paid on the indemnity basis." 'Whether those costs thrown away should be assessed and payable forthwith rather than at the conclusion of the proceedings.']

Ratio Decidendi

The plaintiffs should pay 50% of the second defendant's costs thrown away on the indemnity basis because the exculpatory 25 May 2009 resolutions concerning the Inglewood claim were readily discoverable, should have been discovered with reasonable care and proper consideration, and showed that the claim had no chance of success against him. Indemnity costs were not justified for the Welltree claim because whether finance had been obtained for cl 33 was legally and factually open to argument. All costs thrown away should be assessed and payable forthwith because the abandoned claims were discrete, the plaintiffs' conduct regarding the Inglewood claim was unreasonable, the proceedings had a...

Court Disposition

The second defendant's application succeeded in substantial part.

Orders

  • ["The plaintiffs are to pay 50% of the second defendant's costs thrown away by reason of the amendments which gave rise to the further amended statement of claim on the indemnity basis and 50% of those costs on the ordinary basis." "The second defendant's costs thrown away payable by reason of the amendments which...