MIS Funding No 1 Pty Limited v N W Truskett (No 2); In the matter of Willmott Forests Limited (No 2) [2017] NSWSC 1157

MIS Funding No 1 Pty Limited v N W Truskett (No 2); In the matter of Willmott Forests Limited (No 2) [2017] NSWSC 1157

Indemnity costs were refused because cl 4(d) of the Terms Agreement was expressly directed to Willmott Forests Ltd's costs and no provision, principle or authority was identified showing that the clause conferred equivalent indemnity costs rights on MIS Funding No 1 Pty Limited as assignee. Although MIS Funding No 1 Pty Limited's Calderbank offer was a genuine offer of compromise, it was not unreasonable for Mr Truskett not to accept it because a real issue concerning non-registration of powers of attorney had prospects of success, although it was ultimately determined against him. The same reasons applied to refusal of indemnity costs in the 2016 proceedings.

Jurisdiction
Australia
Judgment Date
31 August 2017
Procedural Posture
Costs / Written Submissions as to Costs Following Judgment Delivered on 28 July 2017
Outcome
MIS Funding No 1 Pty Limited obtained judgment in the 2013 proceedings and dismissal of Mr Truskett's 2016 application, but its application for indemnity costs was refused; costs were ordered on the ordinary basis.
Legal Topics
['indemnity Costs' 'ordinary Basis Costs' 'contractual Entitlement to Costs' 'assignment of Contractual Rights' 'calderbank Offers' 'offers of Compromise' 'costs Follow the Event']
['civil Procedure' 'costs' 'corporations'] ['indemnity Costs' 'ordinary Basis Costs' 'contractual Entitlement to Costs' 'assignment of Contractual Rights' 'calderbank Offers' 'offers of Compromise' 'costs Follow the Event']

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Procedural Posture

Costs / Written Submissions as to Costs Following Judgment Delivered on 28 July 2017

Legal Issues

  1. 1 ["Whether MIS Funding No 1 Pty Limited was entitled to indemnity costs in the 2013 proceedings under cl 4(d) of the Terms Agreement as assignee of Willmott Forests Ltd's rights." "Whether Mr Truskett's failure to accept MIS Funding No 1 Pty Limited's Calderbank offer dated 30 October 2015 justified indemnity costs in the 2013 proceedings." 'Whether MIS Funding No 1 Pty Limited should receive indemnity costs in the 2016 proceedings.']

Ratio Decidendi

Indemnity costs were refused because cl 4(d) of the Terms Agreement was expressly directed to Willmott Forests Ltd's costs and no provision, principle or authority was identified showing that the clause conferred equivalent indemnity costs rights on MIS Funding No 1 Pty Limited as assignee. Although MIS Funding No 1 Pty Limited's Calderbank offer was a genuine offer of compromise, it was not unreasonable for Mr Truskett not to accept it because a real issue concerning non-registration of powers of attorney had prospects of success, although it was ultimately determined against him. The same reasons applied to refusal of indemnity costs in the 2016 proceedings.

Court Disposition

MIS Funding No 1 Pty Limited obtained judgment in the 2013 proceedings and dismissal of Mr Truskett's 2016 application, but its application for indemnity costs was refused; costs were ordered on the ordinary basis.

Orders

  • ['In proceedings 2013/258692, judgment be entered in favour of MIS Funding No 1 Pty Limited against Mr Truskett in the sum of $203,748.41.' 'In proceedings 2013/258692, the Cross-Claim filed by Mr Truskett is dismissed.' "In proceedings 2013/258692, Mr Truskett is to pay MIS Funding No 1 Pty Limited's costs of and...