Territory Realty Pty Ltd v Garraway (No 2) [2009] FCA 739

Territory Realty Pty Ltd v Garraway (No 2) [2009] FCA 739

A fair result was to order respondents Excess, Bishop Estate and Garraway to pay 50% of the applicants' taxed costs, reflecting applicants' partial success and the fact that much evidence on unsuccessful claims was nonetheless relevant to the oppression claim, but denying indemnity costs as respondents' conduct was not egregious and both parties succeeded in part.

Parties
First Applicant: Territory Realty Pty Ltd (ACN 009 644 339); Second Applicant: David John Booth; Third Applicant: John David Sanders; First Respondent: Allan Charles Garraway; Second Respondent: Herbert Thomas Hassall; Third Respondent: Robert George Kendray; Fourth Respondent: H & K Earthmoving Pty Ltd (ACN 009 624 202); Fifth Respondent: Excess Pty Ltd (ACN 009 608 217); Sixth Respondent: Bishop Estate Pty Ltd (ACN 070 455 837); Seventh Respondent: Dundee Beach Pty Ltd (ACN 009 631 136)
Jurisdiction
Australia
Judgment Date
10 July 2009
Procedural Posture
Application for Relief Under Corporations Act (oppression Proceedings) and Related Claims / Costs Determination After Primary Judgment
Outcome
Partial costs awarded to applicants.
Legal Topics
Oppression Remedies, Shareholder Disputes, Costs, Contract, Tort—interference With Contract, Misleading or Deceptive Conduct
Corporations Law Civil Procedure Oppression Remedies Shareholder Disputes Costs Contract Tort—interference With Contract Misleading or Deceptive Conduct

Case Brief

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Parties

Territory Realty Pty Ltd (ACN 009 644 339)

First Applicant

David John Booth

Second Applicant

John David Sanders

Third Applicant

Allan Charles Garraway

First Respondent

Herbert Thomas Hassall

Second Respondent

Robert George Kendray

Third Respondent

H & K Earthmoving Pty Ltd (ACN 009 624 202)

Fourth Respondent

Excess Pty Ltd (ACN 009 608 217)

Fifth Respondent

Bishop Estate Pty Ltd (ACN 070 455 837)

Sixth Respondent

Dundee Beach Pty Ltd (ACN 009 631 136)

Seventh Respondent

Procedural Posture

Application for Relief Under Corporations Act (oppression Proceedings) and Related Claims / Costs Determination After Primary Judgment

Legal Issues

  1. 1 Whether and to what extent costs should be awarded to the applicants having regard to the partial success of their oppression claim and failure on other claims and issues.

Ratio Decidendi

A fair result was to order respondents Excess, Bishop Estate and Garraway to pay 50% of the applicants' taxed costs, reflecting applicants' partial success and the fact that much evidence on unsuccessful claims was nonetheless relevant to the oppression claim, but denying indemnity costs as respondents' conduct was not egregious and both parties succeeded in part.

Court Disposition

Partial costs awarded to applicants.

Orders

  • The first, fifth and sixth respondents (Garraway, Excess, Bishop Estate) pay to the applicants 50% of their costs of the proceedings to be taxed.
  • If those respondents do not pay, applicants may renew their application for costs as against the second, fourth and seventh respondents.