Ballast Holdings Pty Ltd v Leonite Capital (No 2) [2024] FCA 142

Ballast Holdings Pty Ltd v Leonite Capital (No 2) [2024] FCA 142

The defendant was put on clear notice by 16 December 2022 of the genuine dispute as to debt and had no evidence to contradict it; the continued opposition justified indemnity costs from that date. There was no basis to make the solicitor jointly liable for costs, as the solicitor acted on instructions, had no relevant interest in proceedings, and there was no evidence Leonite was impecunious.

Jurisdiction
Australia
Judgment Date
29 February 2024
Procedural Posture
Application to Set Aside Statutory Demand and Costs Determination / Post Judgment (costs Orders)
Outcome
Plaintiff's interlocutory application for indemnity costs partly allowed; indemnity costs awarded from 16 December 2022; application for non-party costs against solicitor dismissed.
Legal Topics
['statutory Demand' 'indemnity Costs' 'non Party Costs' 'genuine Dispute' 'solicitor Liability for Costs']
['corporate Insolvency' 'civil Procedure'] ['statutory Demand' 'indemnity Costs' 'non Party Costs' 'genuine Dispute' 'solicitor Liability for Costs']

Case Brief

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Procedural Posture

Application to Set Aside Statutory Demand and Costs Determination / Post Judgment (costs Orders)

Legal Issues

  1. 1 ["Whether defendant should pay plaintiff's costs on an indemnity basis from a specified date" "Whether costs orders can be made against defendant's solicitor as a non-party" 'Whether persistence in defending statutory demand application justifies indemnity costs']

Ratio Decidendi

The defendant was put on clear notice by 16 December 2022 of the genuine dispute as to debt and had no evidence to contradict it; the continued opposition justified indemnity costs from that date. There was no basis to make the solicitor jointly liable for costs, as the solicitor acted on instructions, had no relevant interest in proceedings, and there was no evidence Leonite was impecunious.

Court Disposition

Plaintiff's interlocutory application for indemnity costs partly allowed; indemnity costs awarded from 16 December 2022; application for non-party costs against solicitor dismissed.

Orders

  • ["Defendant to pay plaintiff's costs up to and including 15 December 2022 on ordinary basis, and from 16 December 2022 on indemnity basis (in both NSD 1107/2022 and NSD 1108/2022)." 'Interlocutory process filed 10 November 2023 otherwise dismissed.' 'Each party to pay their own costs of the interlocutory process.']