In the matter of Jimmy’s Recipe Pty Limited (No 4) [2020] NSWSC 1244

In the matter of Jimmy’s Recipe Pty Limited (No 4) [2020] NSWSC 1244

Upon dismissal of derivative and oppression proceedings post-liquidation and without resolution on the merits, the starting rule under UCPR r 42.20(1) applies, so the plaintiff would otherwise pay the fifth defendant's costs. However, as further litigation on the same cause might be brought by the liquidators or plaintiff, fairness dictates the fifth defendant's costs in these proceedings be his costs in any such subsequent proceedings, rather than as an immediate order against the plaintiff.

Jurisdiction
Australia
Judgment Date
11 September 2020
Procedural Posture
Derivative Action / Oppression Proceedings / Costs Judgment Following Proposed Dismissal After Settlement and Intervening Liquidation
Outcome
Proceedings dismissed. Fifth defendant's costs to be his costs in any further proceedings concerning the same matter.
Legal Topics
['costs' 'derivative Actions' 'oppression Remedy' 'liquidation' 'discontinuance of Proceedings']
['corporations Law' 'equity' 'civil Procedure'] ['costs' 'derivative Actions' 'oppression Remedy' 'liquidation' 'discontinuance of Proceedings']

Case Brief

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Procedural Posture

Derivative Action / Oppression Proceedings / Costs Judgment Following Proposed Dismissal After Settlement and Intervening Liquidation

Legal Issues

  1. 1 ['Appropriate costs order upon dismissal of derivative and oppression proceedings where liquidators are appointed and leave to proceed ceases' 'Whether Re Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin applies or whether the Uniform Civil Procedure Rules 2005 (NSW) r 42.20(1) standard rule applies']

Ratio Decidendi

Upon dismissal of derivative and oppression proceedings post-liquidation and without resolution on the merits, the starting rule under UCPR r 42.20(1) applies, so the plaintiff would otherwise pay the fifth defendant's costs. However, as further litigation on the same cause might be brought by the liquidators or plaintiff, fairness dictates the fifth defendant's costs in these proceedings be his costs in any such subsequent proceedings, rather than as an immediate order against the plaintiff.

Court Disposition

Proceedings dismissed. Fifth defendant's costs to be his costs in any further proceedings concerning the same matter.

Orders

  • ['Dismiss the proceedings.' "If any party to these proceedings commences further proceedings against the fifth defendant in respect of the subject matter of these proceedings, then the fifth defendant's costs of these proceedings will be his costs in the further proceedings, such costs to include his costs in...