Grace v Grace (No 4) [2013] NSWSC 385

Grace v Grace (No 4) [2013] NSWSC 385

The plaintiff succeeded overall because he established that he had been wrongly deprived of the Nevilda shares and the Birrell Street property and the defendants' cross-claim failed, but he failed on the oppression claim and substantially on the NISF claim. Those unsuccessful claims were not entirely distinguishable and severable because the factual disputes bore on credit issues significant to the successful claims, although the defendants should not be responsible for costs exclusively referable to claims that failed. A conservative broad-brush apportionment entitled the plaintiff to 62.5% of overall costs. The inquiry under the undertaking as to damages was not warranted because,...

Jurisdiction
Australia
Judgment Date
28 March 2013
Procedural Posture
Costs and Procedural Applications in Equity Division Proceedings / Post Judgment Orders and Directions
Outcome
First and second defendants ordered to pay 62.5% of the plaintiff's costs of the proceedings including the cross-claim; time for compliance with previous orders extended; defendants' application for an inquiry arising from the plaintiff's undertaking as to damages dismissed; plaintiff's application concerning...
Legal Topics
['costs Where Successful Plaintiff Failed on Significant Issues' 'apportionment of Costs Between Issues' 'undertaking as to Damages on Appointment of Provisional Liquidator' 'extension of Time to Examine Accounts and Serve Falsifications and Objections' 'stay Conditions Relating to Birrell Street Property' 'oppression Relief' 'account of Nevilda Investment Superannuation Fund']
['civil Procedure' 'costs' 'corporations' 'equity'] ['costs Where Successful Plaintiff Failed on Significant Issues' 'apportionment of Costs Between Issues' 'undertaking as to Damages on Appointment of Provisional Liquidator' 'extension of Time to Examine Accounts and Serve Falsifications and Objections' 'stay Conditions Relating to Birrell Street Property' 'oppression Relief' 'account of Nevilda Investment Superannuation Fund']

Case Brief

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Procedural Posture

Costs and Procedural Applications in Equity Division Proceedings / Post Judgment Orders and Directions

Legal Issues

  1. 1 ['Whether the plaintiff, although successful overall, should be deprived of costs or ordered to pay costs in respect of the unsuccessful oppression and NISF claims.' 'Whether the Court should make a broad-brush apportionment of costs rather than leave apportionment to a costs assessor.' "Whether the first and second defendants should have an inquiry as to damages under the plaintiff's undertaking given for appointment of a provisional liquidator." "Whether time should be extended for the plaintiff to apply to examine the defendants' NISF account and serve falsifications and objections." 'Whether the second defendant should pay net proceeds from the Birrell Street property for the period 23 August 2012 to 13 December 2012 as a condition of the stay.']

Ratio Decidendi

The plaintiff succeeded overall because he established that he had been wrongly deprived of the Nevilda shares and the Birrell Street property and the defendants' cross-claim failed, but he failed on the oppression claim and substantially on the NISF claim. Those unsuccessful claims were not entirely distinguishable and severable because the factual disputes bore on credit issues significant to the successful claims, although the defendants should not be responsible for costs exclusively referable to claims that failed. A conservative broad-brush apportionment entitled the plaintiff to 62.5% of overall costs. The inquiry under the undertaking as to damages was not warranted because,...

Court Disposition

First and second defendants ordered to pay 62.5% of the plaintiff's costs of the proceedings including the cross-claim; time for compliance with previous orders extended; defendants' application for an inquiry arising from the plaintiff's undertaking as to damages dismissed; plaintiff's application concerning...

Orders

  • ['Order that First and Second Defendant pay 62.5% of the Plaintiffs costs of the proceedings, including of the cross claim, as assessed.' 'Direct that the time by which the Second Defendant is to comply with Order 51 (a) to (c) of the Orders made on 9 November 2012 be extended from 31 January to 11 April 2013.'...