Popeye Bidco Pty Limited (Receivers and Managers Appointed) v Intermediate Capital Asia Pacific 2008 GP Limited (No 3) [2018] FCA 1597

Popeye Bidco Pty Limited (Receivers and Managers Appointed) v Intermediate Capital Asia Pacific 2008 GP Limited (No 3) [2018] FCA 1597

Although the applicant companies were in a parlous financial state and the non-parties (directors) played an active part and had an interest in the subject matter, it was not just to order costs against them because their actions were a reasonable response to urgent circumstances triggered by the respondents. There was insufficient evidence that the two-case strategy existed at the commencement of the proceedings. The costs were incurred over a short, urgent period and making a non-party costs order would not be just in the particular facts.

Jurisdiction
Australia
Judgment Date
24 October 2018
Procedural Posture
Application for Costs Against Non Parties / Post Interim Injunction, Pre Final Determination of Substantive Issues
Outcome
Application for an order of costs against the non-parties is dismissed.
Legal Topics
['non Party Costs Orders' "directors' Liability for Costs" 'interim and Interlocutory Injunctions']
['civil Procedure' 'costs'] ['non Party Costs Orders' "directors' Liability for Costs" 'interim and Interlocutory Injunctions']

Case Brief

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Procedural Posture

Application for Costs Against Non Parties / Post Interim Injunction, Pre Final Determination of Substantive Issues

Legal Issues

  1. 1 ['Whether it is appropriate to order non-party costs under s 43 of the Federal Court of Australia Act 1976 (Cth) against directors of applicant companies after unsuccessful application for interlocutory injunction.' 'Whether the interests of justice require a costs order against the non-parties given their involvement and the insolvency or financial state of the applicant companies.']

Ratio Decidendi

Although the applicant companies were in a parlous financial state and the non-parties (directors) played an active part and had an interest in the subject matter, it was not just to order costs against them because their actions were a reasonable response to urgent circumstances triggered by the respondents. There was insufficient evidence that the two-case strategy existed at the commencement of the proceedings. The costs were incurred over a short, urgent period and making a non-party costs order would not be just in the particular facts.

Court Disposition

Application for an order of costs against the non-parties is dismissed.

Orders

  • ["The respondents' application for an order for costs against the non-parties be dismissed."]