Bateman Long and Maloney Pty Ltd v Long Beach Land Company Pty Ltd [2011] NSWSC 1495

Bateman Long and Maloney Pty Ltd v Long Beach Land Company Pty Ltd [2011] NSWSC 1495

The case was exceptional because Mr Gertos was the sole controller and source of funds for the plaintiff company, the company had no real resources and was a person of straw, the litigation was brought and conducted for interests identified with him, the interlocutory process imposed wasted costs on Mr May, the plaintiff capitulated on the second hearing day and failed to pay the assessed costs, and it would be a marked injustice and an abuse of limited liability if Mr Gertos did not bear the unpaid costs.

Jurisdiction
Australia
Judgment Date
02 December 2011
Procedural Posture
Costs Application for Order Against Non Party / Notice of Motion After Settlement, Discontinuance and Costs Assessment
Outcome
Motion granted; non-party costs order made against Mr Bill Gertos, with the plaintiff also ordered to pay the costs of the motion.
Legal Topics
['non Party Costs Order' 'security for Costs' 'limited Liability and Control of Litigation' 'costs Assessment']
['civil Procedure' 'costs'] ['non Party Costs Order' 'security for Costs' 'limited Liability and Control of Litigation' 'costs Assessment']

Case Brief

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Procedural Posture

Costs Application for Order Against Non Party / Notice of Motion After Settlement, Discontinuance and Costs Assessment

Legal Issues

  1. 1 ["Whether s 98 of the Civil Procedure Act 2005 (NSW) empowered the Court to order a non-party, Mr Bill Gertos, to pay Mr Paul May's unpaid costs." 'Whether the circumstances were exceptional enough to justify a non-party costs order against the person who funded and controlled the plaintiff company.' 'Whether the repeal of UCPR 42.3(2), prior security for costs, lack of notice, absence from costs assessment, or alleged lack of proof that the principal claim was unmeritorious defeated the application.']

Ratio Decidendi

The case was exceptional because Mr Gertos was the sole controller and source of funds for the plaintiff company, the company had no real resources and was a person of straw, the litigation was brought and conducted for interests identified with him, the interlocutory process imposed wasted costs on Mr May, the plaintiff capitulated on the second hearing day and failed to pay the assessed costs, and it would be a marked injustice and an abuse of limited liability if Mr Gertos did not bear the unpaid costs.

Court Disposition

Motion granted; non-party costs order made against Mr Bill Gertos, with the plaintiff also ordered to pay the costs of the motion.

Orders

  • ['Pursuant to s.98 of the Civil Procedure Act 2005 (NSW), the Court orders the First Respondent (Bill Gertos) to pay the balance owing to the Third Defendant (Paul May) plus interest for his costs in these proceedings.' 'The Court notes that as of 1 August 2011 the balance owing to the Third Defendant was $53,572.23...