In the matter of ENA Development Pty Ltd (in liquidation) (ACN 105 235 363) [2023] NSWSC 652

In the matter of ENA Development Pty Ltd (in liquidation) (ACN 105 235 363) [2023] NSWSC 652

The plaintiffs were entitled to their costs of the whole proceedings on the ordinary basis because they succeeded on their principal claim and the issues on which they failed were minor, unsupported by evidence, and occupied little hearing time. Mr Sebie's unreasonable conduct of the proceedings, including unmeritorious applications, disruptive informal applications, failure to comply with evidence directions, irrelevant cross-examination, and unexplained absences, caused identifiable wasted hearing time and justified indemnity costs for the specified components of the hearing attributable to his most egregious conduct.

Jurisdiction
Australia
Judgment Date
15 June 2023
Procedural Posture
Costs Application in Equity Corporations List Proceedings Concerning Relief Under the Vexatious Proceedings Act 2008 (nsw) / On the Papers After Final Judgment
Outcome
Plaintiffs awarded costs against all defendants on the ordinary basis, with specified components payable by the first defendant on an indemnity basis.
Legal Topics
['indemnity Costs' 'ordinary Basis Costs' 'unreasonable Conduct of Proceedings' 'vexatious Proceedings Order' 'costs Discretion Under S 98 of the Civil Procedure Act 2005 (nsw)']
['costs' 'civil Procedure' 'corporations'] ['indemnity Costs' 'ordinary Basis Costs' 'unreasonable Conduct of Proceedings' 'vexatious Proceedings Order' 'costs Discretion Under S 98 of the Civil Procedure Act 2005 (nsw)']

Case Brief

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Procedural Posture

Costs Application in Equity Corporations List Proceedings Concerning Relief Under the Vexatious Proceedings Act 2008 (nsw) / On the Papers After Final Judgment

Legal Issues

  1. 1 ["Whether the defendants should pay the plaintiffs' costs of the whole proceedings where the plaintiffs succeeded on their principal claim but failed on minor issues." 'Whether the costs order against the first defendant, Robert Sebie, should be on an indemnity basis because of his conduct of the proceedings.' "Which components of the plaintiffs' costs should be recoverable on an indemnity basis."]

Ratio Decidendi

The plaintiffs were entitled to their costs of the whole proceedings on the ordinary basis because they succeeded on their principal claim and the issues on which they failed were minor, unsupported by evidence, and occupied little hearing time. Mr Sebie's unreasonable conduct of the proceedings, including unmeritorious applications, disruptive informal applications, failure to comply with evidence directions, irrelevant cross-examination, and unexplained absences, caused identifiable wasted hearing time and justified indemnity costs for the specified components of the hearing attributable to his most egregious conduct.

Court Disposition

Plaintiffs awarded costs against all defendants on the ordinary basis, with specified components payable by the first defendant on an indemnity basis.

Orders

  • ["Order that the defendants, jointly and severally, are to pay the plaintiffs' costs of the proceedings, on the ordinary basis as agreed or assessed." "Order that the first defendant is to pay the following components of the plaintiffs' costs of the proceedings on an indemnity basis, as agreed or assessed: the...