Boylan v Collingwood-Smith [2010] NSWSC 651

Boylan v Collingwood-Smith [2010] NSWSC 651

Because the proceeding was resolved without a merits determination, the plaintiff had not been shown to have acted unreasonably or to have brought a proceeding necessarily doomed to fail, and the first defendant's late disclosure of the ATO letter did not by itself justify a costs order in the plaintiff's favour, the appropriate order was no order as to costs so that each party bore its own costs, including on the cross-claim.

Jurisdiction
Australia
Judgment Date
11 June 2010
Procedural Posture
Equity Proceeding Concerning Company Records, Accounts and Winding Up; Costs Decision / Ex Tempore Judgment on Costs After the Proceeding, Including the Cross Claim, Was Disposed of by Consent
Outcome
No order as to costs to the intent that the parties bear their own respective costs of the proceeding including the cross-claim.
Legal Topics
['costs' 'company Books and Financial Records Inspection' 'winding Up on the Just and Equitable Ground' 'taking of Accounts' 'reference to Referee' 'ato Audit and Amended Assessments']
['civil Procedure' 'corporations' 'equity'] ['costs' 'company Books and Financial Records Inspection' 'winding Up on the Just and Equitable Ground' 'taking of Accounts' 'reference to Referee' 'ato Audit and Amended Assessments']

Case Brief

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Procedural Posture

Equity Proceeding Concerning Company Records, Accounts and Winding Up; Costs Decision / Ex Tempore Judgment on Costs After the Proceeding, Including the Cross Claim, Was Disposed of by Consent

Legal Issues

  1. 1 ['What costs order should be made where the proceeding and cross-claim were disposed of by consent without a hearing on the merits.' "Whether the plaintiff's consent to winding up after disclosure of the ATO letter amounted to capitulation warranting costs in favour of the defendants." "Whether the first defendant's failure to disclose the ATO letter earlier warranted costs in favour of the plaintiff." 'Whether the plaintiff acted unreasonably in bringing or maintaining the proceeding, or whether the proceeding was necessarily doomed to fail.' "What costs order was appropriate in relation to the plaintiff's unresolved claims for production and inspection of company records."]

Ratio Decidendi

Because the proceeding was resolved without a merits determination, the plaintiff had not been shown to have acted unreasonably or to have brought a proceeding necessarily doomed to fail, and the first defendant's late disclosure of the ATO letter did not by itself justify a costs order in the plaintiff's favour, the appropriate order was no order as to costs so that each party bore its own costs, including on the cross-claim.

Court Disposition

No order as to costs to the intent that the parties bear their own respective costs of the proceeding including the cross-claim.

Orders

  • ['There is no order as to costs to the intent that the parties bear their own respective costs of the proceeding including the cross-claim.']