K & A Laird (N.S.W.) Pty Ltd (in liq) v Aidzan Pty Ltd (in liq) in its own capacity and in its capacity as trustee of the Peter Laird Trust, the Peter Alan Laird Property Trust (known as the PAL Property Trust) trading as the Aidzan Superannuation Fund [2022] NSWSC 1786

K & A Laird (N.S.W.) Pty Ltd (in liq) v Aidzan Pty Ltd (in liq) in its own capacity and in its capacity as trustee of the Peter Laird Trust, the Peter Alan Laird Property Trust (known as the PAL Property Trust) trading as the Aidzan Superannuation Fund [2022] NSWSC 1786

Indemnity costs were not justified because the successful no-loss point was not obvious in the way the strike-out application was primarily advanced, the earlier correspondence did not make the point in the manner that ultimately founded success, and the asserted offer was an invitation to surrender rather than an offer of compromise. However, because Aidzan's Amended First Cross-Claim against the Laird Siblings had been struck out and then dismissed, Aidzan should pay the Laird Siblings' costs of the First Cross-Claim on the ordinary basis. No costs order was made for the summary dismissal and security for costs applications because they became moot and were not determined on their...

Jurisdiction
Australia
Judgment Date
23 December 2022
Procedural Posture
Costs Application in Equity Corporations List / On the Papers After Orders Striking Out Substantial Parts of the Amended First Cross Claim and Consent Dismissal of the Amended First Cross Claim Against the Second to Fifth Cross Defendants and the Second Cross Claim
Outcome
Costs orders made on the ordinary basis; indemnity costs refused; no order as to costs of the costs application.
Legal Topics
['party/party Costs' 'indemnity Costs' 'ordinary Basis Costs' 'strike Out Application' 'summary Dismissal Application' 'security for Costs' 'costs Payable Forthwith']
['costs' 'civil Procedure' 'corporations'] ['party/party Costs' 'indemnity Costs' 'ordinary Basis Costs' 'strike Out Application' 'summary Dismissal Application' 'security for Costs' 'costs Payable Forthwith']

Case Brief

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Procedural Posture

Costs Application in Equity Corporations List / On the Papers After Orders Striking Out Substantial Parts of the Amended First Cross Claim and Consent Dismissal of the Amended First Cross Claim Against the Second to Fifth Cross Defendants and the Second Cross Claim

Legal Issues

  1. 1 ["Whether Aidzan should pay the Laird Siblings' costs of the strike-out application on an indemnity basis rather than the ordinary basis." "Whether Aidzan should pay the Laird Siblings' costs of the First Cross-Claim on an indemnity basis or on the ordinary basis." 'Whether Aidzan should pay the costs of the summary dismissal and security for costs applications.' "Whether Aidzan should pay the Laird Siblings' costs of the Second Cross-Claim." 'Whether any costs ordered should be payable forthwith.' 'Whether any order should be made for the costs of the costs application.']

Ratio Decidendi

Indemnity costs were not justified because the successful no-loss point was not obvious in the way the strike-out application was primarily advanced, the earlier correspondence did not make the point in the manner that ultimately founded success, and the asserted offer was an invitation to surrender rather than an offer of compromise. However, because Aidzan's Amended First Cross-Claim against the Laird Siblings had been struck out and then dismissed, Aidzan should pay the Laird Siblings' costs of the First Cross-Claim on the ordinary basis. No costs order was made for the summary dismissal and security for costs applications because they became moot and were not determined on their...

Court Disposition

Costs orders made on the ordinary basis; indemnity costs refused; no order as to costs of the costs application.

Orders

  • ['The Cross-Claimant to the Amended First Cross-Claim, Aidzan Pty Ltd (in liq) ("Aidzan") pay the Second to Fifth Cross-Defendants ("Laird Siblings") costs of the First Cross-Claim on an ordinary basis, as agreed or as assessed.' "Aidzan pay the Laird Siblings' costs of the Second Cross-Claim on an ordinary basis,...