In the matter of Bicher & Son Pty Ltd [2020] NSWSC 878

In the matter of Bicher & Son Pty Ltd [2020] NSWSC 878

No order as to costs was appropriate because, although Mr Bicher succeeded in avoiding the relief sought by Mr Pellarini, that result arose only after steps taken by Mr Bicher during the proceedings to change the factual position concerning cash and taxation compliance, when Mr Pellarini would likely otherwise have obtained a winding up order, and because Mr Bicher failed in substance on his cross-claim. The offer of compromise and Calderbank offer did not justify indemnity costs because Mr Bicher did not obtain an order or judgment no less favourable than the offer and Mr Pellarini's result was not less favourable than what had been offered.

Jurisdiction
Australia
Judgment Date
08 July 2020
Procedural Posture
Costs Application in Corporations Oppression Proceedings / Determination of Costs After Principal Judgment
Outcome
Second Further Amended Statement of Claim and Amended Cross-Claim dismissed. No order as to the costs of the proceedings.
Legal Topics
['party/party Costs' 'costs Following the Event' 'exceptions to General Costs Rule' 'offers of Compromise' 'calderbank Offers' 'oppression Proceedings' 'winding Up on Just and Equitable Grounds']
['civil Procedure' 'costs' 'corporations'] ['party/party Costs' 'costs Following the Event' 'exceptions to General Costs Rule' 'offers of Compromise' 'calderbank Offers' 'oppression Proceedings' 'winding Up on Just and Equitable Grounds']

Case Brief

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Procedural Posture

Costs Application in Corporations Oppression Proceedings / Determination of Costs After Principal Judgment

Legal Issues

  1. 1 ['Whether costs should follow the event after the claim and cross-claim were dismissed.' 'Whether Mr Bicher should receive costs of the claim and cross-claim despite his failed cross-claim and changes made during the proceedings.' "Whether Mr Bicher's offer of compromise or Calderbank offer justified indemnity costs from 22 February 2020." 'Whether an oral hearing on costs was necessary.']

Ratio Decidendi

No order as to costs was appropriate because, although Mr Bicher succeeded in avoiding the relief sought by Mr Pellarini, that result arose only after steps taken by Mr Bicher during the proceedings to change the factual position concerning cash and taxation compliance, when Mr Pellarini would likely otherwise have obtained a winding up order, and because Mr Bicher failed in substance on his cross-claim. The offer of compromise and Calderbank offer did not justify indemnity costs because Mr Bicher did not obtain an order or judgment no less favourable than the offer and Mr Pellarini's result was not less favourable than what had been offered.

Court Disposition

Second Further Amended Statement of Claim and Amended Cross-Claim dismissed. No order as to the costs of the proceedings.

Orders

  • ['The Second Further Amended Statement of Claim dated 23 April 2020 is dismissed.' 'The Amended Cross-Claim dated 7 April 2020 is dismissed.' 'There be no order as to the costs of the proceedings.']