F Mekler v D Mekler & Ors [2016] NSWSC 250

F Mekler v D Mekler & Ors [2016] NSWSC 250

No order as to costs is appropriate where neither party acted so unreasonably as to warrant a costs order and it cannot be said that either side was almost certain to succeed had the interlocutory motions been fully determined, especially where resolution was reached before a hearing on the merits and with significant change of circumstances immediately prior to hearing.

Jurisdiction
Australia
Judgment Date
16 March 2016
Procedural Posture
Application for Costs / Post Interlocutory, Determination of Costs After Resolution of Interlocutory Motions by Consent
Outcome
Application for costs dismissed. No order as to the costs of Mrs Mekler’s motion to set aside the subpoena and Mr Mekler’s motion seeking relief under s 1303 of the Corporations Act.
Legal Topics
['costs' 'subpoena' 'access to Company Documents' 'corporate Directorship' 'oppression Proceedings']
['corporations Law' 'civil Procedure'] ['costs' 'subpoena' 'access to Company Documents' 'corporate Directorship' 'oppression Proceedings']

Case Brief

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Procedural Posture

Application for Costs / Post Interlocutory, Determination of Costs After Resolution of Interlocutory Motions by Consent

Legal Issues

  1. 1 ["Whether the Plaintiff (Mrs Mekler) should pay the Defendant's costs of two interlocutory motions—an application to set aside a subpoena and an application for orders under s 1303 of the Corporations Act" 'Whether either party acted unreasonably in bringing or resisting the motions' 'Whether a party was almost certain to have succeeded had the applications been heard on their merits']

Ratio Decidendi

No order as to costs is appropriate where neither party acted so unreasonably as to warrant a costs order and it cannot be said that either side was almost certain to succeed had the interlocutory motions been fully determined, especially where resolution was reached before a hearing on the merits and with significant change of circumstances immediately prior to hearing.

Court Disposition

Application for costs dismissed. No order as to the costs of Mrs Mekler’s motion to set aside the subpoena and Mr Mekler’s motion seeking relief under s 1303 of the Corporations Act.

Orders

  • ['No order as to the costs of Mrs Mekler’s motion to set aside the subpoena dated 27 November 2015 and Mr Mekler’s motion seeking relief under s 1303 of the Corporations Act dated 18 December 2015.' 'Liberty to apply within seven days if either party wishes to make further submissions as to costs.']