In the matter of Gunyahweh Pty Limited (No 2) [2023] NSWSC 1204

In the matter of Gunyahweh Pty Limited (No 2) [2023] NSWSC 1204

No order as to costs was appropriate because neither side established an entitlement to shift costs: Benjamin obtained a finding of oppression but no practical remedial order, while the Cross-Defendants were found to have engaged in oppressive conduct and contributed to the multiplication of false issues and irrelevant evidence. Both parties led voluminous evidence about unpleaded allegations of criminality and misconduct, significant parts of both cases proceeded on false premises about the Company's shares, the costs were grossly disproportionate to the monetary amounts in issue, and deficiencies in the evidence led by both parties prevented orders that could have remedied the oppression.

Jurisdiction
Australia
Judgment Date
09 October 2023
Procedural Posture
Equity Corporations List; Costs in Oppression Proceedings / Costs Determination After Principal Judgment Dismissing the Cross Claim and Primary Proceedings
Outcome
No order as to costs; liberty reserved to the Cross-Claimant to apply in relation to correction of the Company's members register and ASIC records.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'oppression Proceedings' 'rectification of Members Register' 'asic Records']
['civil Procedure' 'corporations' 'costs'] ['party/party Costs' 'costs Follow the Event' 'oppression Proceedings' 'rectification of Members Register' 'asic Records']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Corporations List; Costs in Oppression Proceedings / Costs Determination After Principal Judgment Dismissing the Cross Claim and Primary Proceedings

Legal Issues

  1. 1 ['Whether Benjamin Smith should receive a costs order for 45% of his costs on the ordinary basis despite obtaining no remedial order on the Cross-Claim.' 'Whether the Company and other Cross-Defendants should receive their costs as successful parties.' 'Whether no order as to costs should be made because of the manner in which both parties conducted the proceedings.' 'Whether liberty should be reserved to apply if the Company does not correct its members register and cause correction of ASIC records.']

Ratio Decidendi

No order as to costs was appropriate because neither side established an entitlement to shift costs: Benjamin obtained a finding of oppression but no practical remedial order, while the Cross-Defendants were found to have engaged in oppressive conduct and contributed to the multiplication of false issues and irrelevant evidence. Both parties led voluminous evidence about unpleaded allegations of criminality and misconduct, significant parts of both cases proceeded on false premises about the Company's shares, the costs were grossly disproportionate to the monetary amounts in issue, and deficiencies in the evidence led by both parties prevented orders that could have remedied the oppression.

Court Disposition

No order as to costs; liberty reserved to the Cross-Claimant to apply in relation to correction of the Company's members register and ASIC records.

Orders

  • ['There be no order as to the costs of the proceedings.' 'Reserve liberty to the Cross-Claimant, Mr Benjamin Smith, to apply if the Company does not correct its members register and cause the correction of the records maintained by the Australian Securities and Investments Commission in the manner noted in paragraph...