Prime Capital Securities Pty Ltd v Elizabeth Ann Calleja;; Caleja PJC Furniture Freighters Pty Ltd v Prime Capital Securities;; Elizabeth Ann Calleja v Prime Capital Securities Pty Ltd (COSTS) [2017] NSWSC 1801

Prime Capital Securities Pty Ltd v Elizabeth Ann Calleja;; Caleja PJC Furniture Freighters Pty Ltd v Prime Capital Securities;; Elizabeth Ann Calleja v Prime Capital Securities Pty Ltd (COSTS) [2017] NSWSC 1801

Although Mr Scanlon was Prime's controlling mind, played an active part in the litigation, and Prime's conduct of the litigation could be described as unreasonable or improper, the evidence did not establish that Mr Scanlon funded the litigation, that his interest was greater than or equal to Prime's, or that Prime was insolvent or a straw man. Prime had substantial funds and a sizeable loan portfolio and was capable of meeting an indemnity costs order. The interests of justice did not require a non-party costs order against Mr Scanlon.

Jurisdiction
Australia
Judgment Date
19 December 2017
Procedural Posture
Application for a Non Party Costs Order / On the Papers After Judgment in the Principal Proceedings
Outcome
The application for a non-party costs order was dismissed, and the costs order in the principal proceedings in favour of the Calleja interests against Prime on an indemnity basis was confirmed.
Legal Topics
['non Party Costs Order' 'indemnity Costs' 'director and Sole Shareholder' 'man of Straw' 'litigation Funding' 'corporate Assets']
['real Property' 'costs' 'civil Procedure'] ['non Party Costs Order' 'indemnity Costs' 'director and Sole Shareholder' 'man of Straw' 'litigation Funding' 'corporate Assets']

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Procedural Posture

Application for a Non Party Costs Order / On the Papers After Judgment in the Principal Proceedings

Legal Issues

  1. 1 ["Whether a non-party costs order should be made against Prime's director and sole shareholder, Mr Scanlon." 'Whether Prime was insolvent or a man of straw and unable or unwilling to meet a costs order.' 'Whether the interests of justice required Mr Scanlon to be jointly and severally liable for costs on an indemnity basis.']

Ratio Decidendi

Although Mr Scanlon was Prime's controlling mind, played an active part in the litigation, and Prime's conduct of the litigation could be described as unreasonable or improper, the evidence did not establish that Mr Scanlon funded the litigation, that his interest was greater than or equal to Prime's, or that Prime was insolvent or a straw man. Prime had substantial funds and a sizeable loan portfolio and was capable of meeting an indemnity costs order. The interests of justice did not require a non-party costs order against Mr Scanlon.

Court Disposition

The application for a non-party costs order was dismissed, and the costs order in the principal proceedings in favour of the Calleja interests against Prime on an indemnity basis was confirmed.

Orders

  • ['The application for a non-party costs order is dismissed, with costs of the application against the Calleja interests.' 'Costs in the principle proceedings determined on 6 December 2017 are confirmed, in favour of the Calleja interests, against Prime, on an indemnity basis.']