Aurora Funds Management Limited v Bond Street Custodians Limited & Ors [2019] NSWSC 304

Aurora Funds Management Limited v Bond Street Custodians Limited & Ors [2019] NSWSC 304

Aurora's consent to dismissal was properly characterised as capitulation and abandonment of its case. Its pleaded case could not succeed because it incorrectly pleaded the number of Bond Street votes and, after receiving documents on 28 November 2018 supporting the validity of HSBC's proxies, it was clearly on notice that the factual foundation of its pleaded allegations was flawed. Aurora had not made appropriate pre-litigation enquiries or used available procedures such as preliminary discovery, and it continued the proceedings after it and its advisers should have known there were no prospects of success. The defendants were therefore entitled to costs, with indemnity costs from 29...

Jurisdiction
Australia
Judgment Date
22 March 2019
Procedural Posture
Equity Proceeding Concerning Declarations About Shareholder Votes and Director Appointment Resolutions / Hearing of Notices of Motion Seeking Dismissal Pursuant to R 13.4 of the Uniform Civil Procedure Rules 2005 (nsw), With the Plaintiff Consenting to Dismissal and Costs Remaining in Dispute
Outcome
Proceedings dismissed by consent; plaintiff ordered to pay defendants' costs on an ordinary basis for an initial period and on an indemnity basis thereafter.
Legal Topics
['indemnity Costs' 'consent to Summary Dismissal' 'unreasonable Conduct of Proceedings' 'proxy Votes at General Meeting' 'shareholder Resolutions']
['costs' 'civil Procedure' 'corporations'] ['indemnity Costs' 'consent to Summary Dismissal' 'unreasonable Conduct of Proceedings' 'proxy Votes at General Meeting' 'shareholder Resolutions']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Declarations About Shareholder Votes and Director Appointment Resolutions / Hearing of Notices of Motion Seeking Dismissal Pursuant to R 13.4 of the Uniform Civil Procedure Rules 2005 (nsw), With the Plaintiff Consenting to Dismissal and Costs Remaining in Dispute

Legal Issues

  1. 1 ["Whether the plaintiff should pay the defendants' costs where the proceedings were dismissed by consent without a hearing on the merits." "Whether the defendants' costs should be paid on an indemnity basis." 'From what date any indemnity costs order should operate.']

Ratio Decidendi

Aurora's consent to dismissal was properly characterised as capitulation and abandonment of its case. Its pleaded case could not succeed because it incorrectly pleaded the number of Bond Street votes and, after receiving documents on 28 November 2018 supporting the validity of HSBC's proxies, it was clearly on notice that the factual foundation of its pleaded allegations was flawed. Aurora had not made appropriate pre-litigation enquiries or used available procedures such as preliminary discovery, and it continued the proceedings after it and its advisers should have known there were no prospects of success. The defendants were therefore entitled to costs, with indemnity costs from 29...

Court Disposition

Proceedings dismissed by consent; plaintiff ordered to pay defendants' costs on an ordinary basis for an initial period and on an indemnity basis thereafter.

Orders

  • ['By consent, the proceedings are dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).' "The plaintiff to pay the defendants' costs of the proceedings from 18 September 2018 to 28 November 2018 inclusive on ordinary basis." "The plaintiff to pay the defendants' costs of the proceedings...