Esined No. 9 Pty Limited v Moylan Retirement Solutions Pty Ltd; P&S Kauter Investments Pty Ltd ATF the Kauter Superannuation Fund v Moylan Retirement Solutions Pty Ltd; Graeme Manning v Arch Underwriting At Lloyds Limited on Behalf of Syndicate 2012 (No. 3) [2020] NSWSC 930

Esined No. 9 Pty Limited v Moylan Retirement Solutions Pty Ltd; P&S Kauter Investments Pty Ltd ATF the Kauter Superannuation Fund v Moylan Retirement Solutions Pty Ltd; Graeme Manning v Arch Underwriting At Lloyds Limited on Behalf of Syndicate 2012 (No. 3) [2020] NSWSC 930

Costs are awarded to the defendants on a joint and several basis as plaintiffs' claims failed overall, the two limbs of s 601AG are not severable, and proceedings were run together on common facts and law; indemnity costs refused as the Calderbank offer was made too late for fair consideration.

Parties
Plaintiff: Esined No. 9 Pty Ltd; Plaintiff: Esined No. 10 Pty Ltd; Defendant: Moylan Retirement Solutions Pty Ltd; Defendant: Arch Underwriting at Lloyd's Ltd on behalf of Syndicate 2012; Defendant: Barbican Managing Agency Limited; Defendant: Hiscox Dedicated Corporate Member Limited; Defendant: Liberty Mutual Insurance Europe Limited; Plaintiff: P&S Kauter Investments Pty Ltd ATF the Kauter Superannuation Fund; Defendant: Matrix Planning Solutions Limited; Defendant: Hunter Financial Planning Pty Ltd; Plaintiff: Graeme Manning; Plaintiff: Nancy Manning; Plaintiff: Jalin Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
22 July 2020
Procedural Posture
Costs Determination After Dismissal of Claims / Post Judgment Application; Costs Orders
Outcome
Application for each party to bear its own costs dismissed. Plaintiffs in all proceedings jointly and severally liable for defendants' costs. No indemnity costs ordered.
Legal Topics
Costs, Party/party Costs, Indemnity Costs, Joint and Several Liability
Civil Procedure Equity Costs Party/party Costs Indemnity Costs Joint and Several Liability

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Parties

Esined No. 9 Pty Ltd

Plaintiff

Esined No. 10 Pty Ltd

Plaintiff

Moylan Retirement Solutions Pty Ltd

Defendant

Arch Underwriting at Lloyd's Ltd on behalf of Syndicate 2012

Defendant

Barbican Managing Agency Limited

Defendant

Hiscox Dedicated Corporate Member Limited

Defendant

Liberty Mutual Insurance Europe Limited

Defendant

P&S Kauter Investments Pty Ltd ATF the Kauter Superannuation Fund

Plaintiff

Matrix Planning Solutions Limited

Defendant

Hunter Financial Planning Pty Ltd

Defendant

Graeme Manning

Plaintiff

Nancy Manning

Plaintiff

Jalin Holdings Pty Ltd

Plaintiff

Procedural Posture

Costs Determination After Dismissal of Claims / Post Judgment Application; Costs Orders

Legal Issues

  1. 1 Whether plaintiffs should bear their own costs given partial success on a limb of Corporations Act, s 601AG
  2. 2 Whether plaintiffs should be jointly and severally liable for costs
  3. 3 Whether indemnity costs should be ordered after Calderbank offer

Ratio Decidendi

Costs are awarded to the defendants on a joint and several basis as plaintiffs' claims failed overall, the two limbs of s 601AG are not severable, and proceedings were run together on common facts and law; indemnity costs refused as the Calderbank offer was made too late for fair consideration.

Court Disposition

Application for each party to bear its own costs dismissed. Plaintiffs in all proceedings jointly and severally liable for defendants' costs. No indemnity costs ordered.

Orders

  • Order that the plaintiffs to pay the defendants' costs of these proceedings on the basis that the plaintiffs in all three proceedings, 2012/374893, 2013/314260, and 2015/252310, are jointly and severally liable for the defendants' costs in all three proceedings.