Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd (Costs) [2024] NSWSC 756

Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd (Costs) [2024] NSWSC 756

From no later than 17 May 2024, when Hunt Prosperity knew that Aurora and the Hartley interests, holding 80% of the equity in the Fund, opposed the enterprise being shut down and there was no overt support from any other unitholder, Hunt Prosperity acted unreasonably and for its own benefit rather than for the benefit of the Fund, satisfying both limbs of r 42.25(2). Costs before that opposition was known were to be costs in the cause, but not payable from the Fund unless and until Hunt Prosperity finally becomes entitled to them; costs from 17 May 2024 were to be borne by each party and not paid out of the Fund.

Jurisdiction
Australia
Judgment Date
20 June 2024
Procedural Posture
Costs Determination on an Application by a Trustee for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) / After Dismissal of the Judicial Advice Application
Outcome
Costs orders made limiting Hunt Prosperity's recovery and preventing payment of specified costs out of the Fund.
Legal Topics
['judicial Advice to Trustee' "trustee's Costs From Trust Fund" 'costs in the Cause' 'uniform Civil Procedure Rules 2005 (nsw) R 42.25' 'trustee Acting Unreasonably or for Own Benefit']
['costs' 'trusts' 'equity'] ['judicial Advice to Trustee' "trustee's Costs From Trust Fund" 'costs in the Cause' 'uniform Civil Procedure Rules 2005 (nsw) R 42.25' 'trustee Acting Unreasonably or for Own Benefit']

Case Brief

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Procedural Posture

Costs Determination on an Application by a Trustee for Judicial Advice Under S 63 of the Trustee Act 1925 (nsw) / After Dismissal of the Judicial Advice Application

Legal Issues

  1. 1 ["Whether Hunt Prosperity's costs of the dismissed judicial advice application should be paid out of the Fund on an indemnity basis." 'Whether Hunt Prosperity acted unreasonably or in substance for its own benefit rather than for the benefit of the Fund within Uniform Civil Procedure Rules 2005 (NSW) r 42.25(2).' 'Whether costs should be costs in the cause or each party should bear their own costs for any period of the application.']

Ratio Decidendi

From no later than 17 May 2024, when Hunt Prosperity knew that Aurora and the Hartley interests, holding 80% of the equity in the Fund, opposed the enterprise being shut down and there was no overt support from any other unitholder, Hunt Prosperity acted unreasonably and for its own benefit rather than for the benefit of the Fund, satisfying both limbs of r 42.25(2). Costs before that opposition was known were to be costs in the cause, but not payable from the Fund unless and until Hunt Prosperity finally becomes entitled to them; costs from 17 May 2024 were to be borne by each party and not paid out of the Fund.

Court Disposition

Costs orders made limiting Hunt Prosperity's recovery and preventing payment of specified costs out of the Fund.

Orders

  • ["Hunt Prosperity's costs of the application up to and including 16 May 2024 will be costs in the cause of the proceedings." 'There will be no order with respect to the costs incurred from 17 May 2024 to the intent that each party shall bear their own.' 'Unless and until Hunt Prosperity becomes finally entitled to...