nib Holdings Ltd v Raffy Nominees Pty Ltd as trustee of the Whitecoat Holding Trust (No 2) [2023] NSWSC 1036

nib Holdings Ltd v Raffy Nominees Pty Ltd as trustee of the Whitecoat Holding Trust (No 2) [2023] NSWSC 1036

Leave to proceed was appropriate because the only outstanding question was costs, fixing costs on a gross sum basis was appropriate following the appointment of Administrators, and the Administrators did not oppose leave. Although both offers were genuine offers of compromise, it was reasonable for Raffy to reject them because they tied settlement of these proceedings to other proceedings and parties, contemplated further negotiation of broad releases and other terms, and sought outcomes beyond what nib could obtain in the proceedings. A gross sum ordinary costs order was justified because nib's costs evidence and adjustments were logical, fair and reasonable, subject to excluding the...

Jurisdiction
Australia
Judgment Date
31 August 2023
Procedural Posture
Costs in Equity Commercial List Proceedings / Post Judgment Determination of Costs and Application for Leave to Proceed Against a Company in Voluntary Administration
Outcome
The defendant was ordered to pay the plaintiff's costs of the proceedings fixed in the amount of $550,000.
Legal Topics
['party/party Costs' 'indemnity Costs' 'calderbank Offers' 'gross Sum Costs Order' 'leave to Proceed Against Company in Voluntary Administration']
['civil Procedure' 'costs' 'corporations'] ['party/party Costs' 'indemnity Costs' 'calderbank Offers' 'gross Sum Costs Order' 'leave to Proceed Against Company in Voluntary Administration']

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

Costs in Equity Commercial List Proceedings / Post Judgment Determination of Costs and Application for Leave to Proceed Against a Company in Voluntary Administration

Legal Issues

  1. 1 ['Whether leave should be granted under s 440D(1)(b) of the Corporations Act 2001 (Cth) to proceed against Raffy after it entered voluntary administration.' 'Whether nib should receive indemnity costs from 25 October 2022 or 8 May 2023 based on Calderbank offers.' 'Whether costs should be fixed by a gross sum costs order and, if so, in what amount.']

Ratio Decidendi

Leave to proceed was appropriate because the only outstanding question was costs, fixing costs on a gross sum basis was appropriate following the appointment of Administrators, and the Administrators did not oppose leave. Although both offers were genuine offers of compromise, it was reasonable for Raffy to reject them because they tied settlement of these proceedings to other proceedings and parties, contemplated further negotiation of broad releases and other terms, and sought outcomes beyond what nib could obtain in the proceedings. A gross sum ordinary costs order was justified because nib's costs evidence and adjustments were logical, fair and reasonable, subject to excluding the...

Court Disposition

The defendant was ordered to pay the plaintiff's costs of the proceedings fixed in the amount of $550,000.

Orders

  • ["The defendant pay the plaintiff's costs of these proceedings fixed in the amount of $550,000."]