Foyster v Foyster Holdings [2003] NSWSC 135

Foyster v Foyster Holdings [2003] NSWSC 135

Upon the plaintiff discontinuing claims against the fourth defendant, the plaintiff is liable for the fourth defendant's costs of proceedings. The competing s.237 applications became unnecessary due to the resignation of a director resolving the company's deadlock, not due to the plaintiff's actions. The costs of Mrs Robinson's s.237 application should be borne by her, benefiting Mr Coggan and Mr Russell, as her resignation amounted to discontinuance of her application. No basis was found for awarding gross sum or indemnity costs; costs should be assessed on a party/party basis and are payable forthwith.

Parties
Plaintiff: David Lloyd Foyster; First Defendant: Foyster Holdings Pty Limited (Provisional Liquidator Appointed); Second Defendant: Ian Lawrence Struthers; Third Defendant: Jacqueline Whyatt Foyster; Fourth Defendant: Tasmanian Titanium Pty Limited; Fifth Defendant: Peter William Hopkins; Sixth Defendant: Hopkins Professional Services Pty Limited; Seventh Defendant: Maxwell William Prentice; Eighth Defendant: Repbrook Pty Limited; Director of Fourth Defendant / S.237 Applicant: John Leslie Coggan; Director of Fourth Defendant / S.237 Applicant: Michael John Russell; Intervener Former Director of Fourth Defendant / S.237 Applicant: Anne Robinson
Jurisdiction
Australia
Judgment Date
13 March 2003
Procedural Posture
Corporations Costs Application / Judgment on Costs After Dismissal/discontinuance of Claims and Competing S.237 Applications
Outcome
Costs orders made as specified; fourth defendant awarded costs against plaintiff; Coggan and Russell awarded costs against Mrs Robinson; all to be assessed party/party and payable forthwith.
Legal Topics
Representation of Company in Proceedings, Costs Orders, S.237 Applications Under Corporations Act, Party/party Costs, Discontinuance of Claim
Corporations Law Civil Procedure Representation of Company in Proceedings Costs Orders S.237 Applications Under Corporations Act Party/party Costs Discontinuance of Claim

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Parties

David Lloyd Foyster

Plaintiff

Foyster Holdings Pty Limited (Provisional Liquidator Appointed)

First Defendant

Ian Lawrence Struthers

Second Defendant

Jacqueline Whyatt Foyster

Third Defendant

Tasmanian Titanium Pty Limited

Fourth Defendant

Peter William Hopkins

Fifth Defendant

Hopkins Professional Services Pty Limited

Sixth Defendant

Maxwell William Prentice

Seventh Defendant

Repbrook Pty Limited

Eighth Defendant

John Leslie Coggan

Director of Fourth Defendant / S.237 Applicant

Michael John Russell

Director of Fourth Defendant / S.237 Applicant

Anne Robinson

Intervener Former Director of Fourth Defendant / S.237 Applicant

Procedural Posture

Corporations Costs Application / Judgment on Costs After Dismissal/discontinuance of Claims and Competing S.237 Applications

Legal Issues

  1. 1 Who should bear costs of proceedings after discontinuance against the fourth defendant
  2. 2 Who should bear costs of competing s.237 (Corporations Act) applications to represent a company with a deadlocked board
  3. 3 Whether costs should be awarded as a gross sum or assessed

Ratio Decidendi

Upon the plaintiff discontinuing claims against the fourth defendant, the plaintiff is liable for the fourth defendant's costs of proceedings. The competing s.237 applications became unnecessary due to the resignation of a director resolving the company's deadlock, not due to the plaintiff's actions. The costs of Mrs Robinson's s.237 application should be borne by her, benefiting Mr Coggan and Mr Russell, as her resignation amounted to discontinuance of her application. No basis was found for awarding gross sum or indemnity costs; costs should be assessed on a party/party basis and are payable forthwith.

Court Disposition

Costs orders made as specified; fourth defendant awarded costs against plaintiff; Coggan and Russell awarded costs against Mrs Robinson; all to be assessed party/party and payable forthwith.

Orders

  • The plaintiff pay the costs of the proceedings of the fourth defendant on the party/party basis, such costs to be assessed and payable forthwith.
  • Anne Robinson pay the costs of John Leslie Coggan and Michael John Russell of and incidental to the interlocutory process of Anne Robinson filed on 27 May 2002 on the party/party basis, such costs to be assessed and payable forthwith.