Cutler v Derwent Howard Media Pty Ltd, in the matter of Derwent Howard Media Pty Ltd (Subject to Deed of Company Arrangement) (No 3) [2011] FCA 1127

Cutler v Derwent Howard Media Pty Ltd, in the matter of Derwent Howard Media Pty Ltd (Subject to Deed of Company Arrangement) (No 3) [2011] FCA 1127

Given the offer was open for only a very short period and included a capped cost condition, it was not imprudent or unreasonable for the plaintiff not to accept the Calderbank offer. Each party should pay its own costs, since both succeeded on substantial issues.

Parties
Plaintiff: Nicholas Cutler; First Defendant: Derwent Howard Media Pty Ltd (Subject to Deed of Company Arrangement) ACN 129 920 458; Second Defendant: Nicholas Craig Malanos; Third Defendant: Christopher Damien Darin
Jurisdiction
Australia
Judgment Date
01 September 2011
Procedural Posture
Application in Insolvency Proceedings / Costs Determination After Judgment
Outcome
Each party to pay its own costs; plaintiff admitted to proof in the sum ordered.
Legal Topics
Costs Discretion, Calderbank Offers, Proof of Debt, Annual Leave Entitlements
Insolvency Law Employment Law Civil Procedure Costs Discretion Calderbank Offers Proof of Debt Annual Leave Entitlements

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Parties

Nicholas Cutler

Plaintiff

Derwent Howard Media Pty Ltd (Subject to Deed of Company Arrangement) ACN 129 920 458

First Defendant

Nicholas Craig Malanos

Second Defendant

Christopher Damien Darin

Third Defendant

Procedural Posture

Application in Insolvency Proceedings / Costs Determination After Judgment

Legal Issues

  1. 1 What is the appropriate order as to costs?
  2. 2 Should an indemnity costs order be made based on the Calderbank offer?

Ratio Decidendi

Given the offer was open for only a very short period and included a capped cost condition, it was not imprudent or unreasonable for the plaintiff not to accept the Calderbank offer. Each party should pay its own costs, since both succeeded on substantial issues.

Court Disposition

Each party to pay its own costs; plaintiff admitted to proof in the sum ordered.

Orders

  • The second and third defendants admit the plaintiff to proof in respect of the Deed of Company Arrangement of the first defendant in the sum of $22,691.98.
  • Subject to any previous costs orders, each party pay its own costs of and in connection with the proceeding.