Sassine v Mondray Pty Limited [2011] NSWSC 523

Sassine v Mondray Pty Limited [2011] NSWSC 523

Because Charlie Sassine's s 237 application was dismissed, costs should follow the event and he should pay George Sassine's costs. Indemnity costs for the whole proceeding were not warranted by the alleged breaches of directions or asserted hopelessness, but it was unreasonable not to accept the 16 March 2011 offer after 22 March 2011 because the existing second cross-claim was fatal to the s 237 claim, as the Court ultimately held. Costs were therefore ordered on the ordinary basis up to and including 22 March 2011 and on the indemnity basis thereafter.

Jurisdiction
Australia
Judgment Date
03 June 2011
Procedural Posture
Costs in Relation to Application for Leave Under S 237 of the Corporations Act 2001 (cth) / Written Submissions After Dismissal of the S 237 Application
Outcome
Originating process dismissed; Charlie Sassine ordered to pay George Sassine's costs on the ordinary basis up to and including 22 March 2011 and on the indemnity basis thereafter.
Legal Topics
['derivative Action Leave' 'costs' 'indemnity Costs' 'settlement Offer']
['corporations' 'civil Procedure'] ['derivative Action Leave' 'costs' 'indemnity Costs' 'settlement Offer']

Case Brief

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Procedural Posture

Costs in Relation to Application for Leave Under S 237 of the Corporations Act 2001 (cth) / Written Submissions After Dismissal of the S 237 Application

Legal Issues

  1. 1 ["Whether Charlie Sassine should pay George Sassine's costs of the s 237 application." 'Whether costs should be assessed on the ordinary basis or the indemnity basis.' 'Whether the originating process filed on 7 October 2008 should be dismissed as a formality.']

Ratio Decidendi

Because Charlie Sassine's s 237 application was dismissed, costs should follow the event and he should pay George Sassine's costs. Indemnity costs for the whole proceeding were not warranted by the alleged breaches of directions or asserted hopelessness, but it was unreasonable not to accept the 16 March 2011 offer after 22 March 2011 because the existing second cross-claim was fatal to the s 237 claim, as the Court ultimately held. Costs were therefore ordered on the ordinary basis up to and including 22 March 2011 and on the indemnity basis thereafter.

Court Disposition

Originating process dismissed; Charlie Sassine ordered to pay George Sassine's costs on the ordinary basis up to and including 22 March 2011 and on the indemnity basis thereafter.

Orders

  • ['Order that the originating process filed on 7 October 2008 be dismissed.' 'Order that Charlie Sassine pay the costs of George Sassine of the proceedings, such costs to be assessed on the ordinary basis up to and including 22 March 2011 and on the indemnity basis thereafter.']