Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34

Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34

The primary judge's finding that Mr Heath knowingly propounded false allegations was not supported by clear and compelling evidence and involved a material error of fact, which vitiated the discretionary costs order. On re-exercising the discretion, however, the Court held that by 30 May 2014 Mr Heath, as director, CEO, CFO, significant creditor and active manager of the Lessee's litigation, acting reasonably should have concluded that the defence and cross-claim had no reasonable prospects in light of the respondents' unanswered reply affidavits. His unreasonable continuation of the proceedings after that date justified a non-party costs order against him on an indemnity basis from 30...

Jurisdiction
Australia
Judgment Date
08 March 2016
Procedural Posture
Appeal Concerning Non Party Costs Order / Application for Leave to Appeal and Appeal From Order of the Supreme Court of New South Wales, Equity Division
Outcome
Appeal allowed; primary judge's order 6 set aside and replaced with an order that Nicholas Heath pay the plaintiffs' costs of the proceedings below from 30 May 2014 on an indemnity basis; no order as to costs of the appeal.
Legal Topics
['non Party Costs Order' 'indemnity Costs' 'costs Discretion Under S 98 Civil Procedure Act 2005 (nsw)' 'house V the King Error' 'exceptional Circumstances for Costs Against a Non Party' 'director Conducting Litigation for Company' 'security for Costs' 'impecunious Litigant']
['civil Procedure' 'costs' 'corporations'] ['non Party Costs Order' 'indemnity Costs' 'costs Discretion Under S 98 Civil Procedure Act 2005 (nsw)' 'house V the King Error' 'exceptional Circumstances for Costs Against a Non Party' 'director Conducting Litigation for Company' 'security for Costs' 'impecunious Litigant']

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Procedural Posture

Appeal Concerning Non Party Costs Order / Application for Leave to Appeal and Appeal From Order of the Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ['Whether leave to appeal was required from a discretionary costs order against a non-party.' "Whether the primary judge made a material error of fact in finding that Nicholas Heath knew the Lessee's defence and cross-claim were false." 'Whether the Court should re-exercise the costs discretion under s 98(1) of the Civil Procedure Act 2005 (NSW).' 'Whether exceptional circumstances justified a non-party costs order against Nicholas Heath.' 'Whether the costs order against Nicholas Heath should be on an indemnity basis and from what date.']

Ratio Decidendi

The primary judge's finding that Mr Heath knowingly propounded false allegations was not supported by clear and compelling evidence and involved a material error of fact, which vitiated the discretionary costs order. On re-exercising the discretion, however, the Court held that by 30 May 2014 Mr Heath, as director, CEO, CFO, significant creditor and active manager of the Lessee's litigation, acting reasonably should have concluded that the defence and cross-claim had no reasonable prospects in light of the respondents' unanswered reply affidavits. His unreasonable continuation of the proceedings after that date justified a non-party costs order against him on an indemnity basis from 30...

Court Disposition

Appeal allowed; primary judge's order 6 set aside and replaced with an order that Nicholas Heath pay the plaintiffs' costs of the proceedings below from 30 May 2014 on an indemnity basis; no order as to costs of the appeal.

Orders

  • ['Extend the time for filing of the summons for leave to appeal to 10 February 2016 and otherwise dispense with service of the summons.' 'To the extent necessary, grant leave to appeal.' 'Appeal allowed.' "Set aside order 6 made by the primary judge on 17 November 2014, and in lieu thereof: Order that the appellant,...