Bale v Kimberley Developments Pty Ltd (No 2) [2022] NSWSC 1009

Bale v Kimberley Developments Pty Ltd (No 2) [2022] NSWSC 1009

Costs should follow the event: the plaintiff was substantively successful in her claims for unconscionable conduct, constructive trust, and breach of fiduciary duty; it was appropriate to join the relevant defendants; and there was insufficient justification for issue-by-issue apportionment, indemnity costs, or treating any defendant as the 'successful party' given factual and legal overlap and the substance of the findings. For the security for costs motion, each party should bear their own costs due to the conduct of both sides regarding disclosure and timing.

Jurisdiction
Australia
Judgment Date
27 July 2022
Procedural Posture
Equity / Costs Decision After Substantive Judgment
Outcome
First, second, fourth, fifth and sixth defendants severally liable to pay plaintiff's costs of the proceeding on the ordinary basis, except as to the security for costs application, for which each party bears their own costs.
Legal Topics
['costs' 'unconscionable Conduct' 'constructive Trust' 'breach of Fiduciary Duty' 'security for Costs' 'procedural Fairness']
['equity' 'civil Procedure'] ['costs' 'unconscionable Conduct' 'constructive Trust' 'breach of Fiduciary Duty' 'security for Costs' 'procedural Fairness']

Case Brief

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Procedural Posture

Equity / Costs Decision After Substantive Judgment

Legal Issues

  1. 1 ['Whether costs should follow the event for the proceedings and security for costs motion' "Whether any party should be treated as the 'successful' party for the purpose of costs" 'Whether costs should be apportioned on an issue-by-issue basis or proportionately' 'Whether indemnity costs orders are warranted for any party']

Ratio Decidendi

Costs should follow the event: the plaintiff was substantively successful in her claims for unconscionable conduct, constructive trust, and breach of fiduciary duty; it was appropriate to join the relevant defendants; and there was insufficient justification for issue-by-issue apportionment, indemnity costs, or treating any defendant as the 'successful party' given factual and legal overlap and the substance of the findings. For the security for costs motion, each party should bear their own costs due to the conduct of both sides regarding disclosure and timing.

Court Disposition

First, second, fourth, fifth and sixth defendants severally liable to pay plaintiff's costs of the proceeding on the ordinary basis, except as to the security for costs application, for which each party bears their own costs.

Orders

  • ["Subject to order 2, order that the first, second, fourth, fifth and sixth defendants be severally liable to pay the plaintiff's costs of the proceeding on the ordinary basis." 'Order that each of the parties pays her, his or its own costs of the amended notice of motion dated 20 August 2021.']