Angelis as trustee for the Angelis Family Trust v Pemba Capital Partners Fund I Partnership, LP (No 4) [2019] NSWSC 1878

Angelis as trustee for the Angelis Family Trust v Pemba Capital Partners Fund I Partnership, LP (No 4) [2019] NSWSC 1878

The Angelis Parties were largely unsuccessful and accepted responsibility for Pemba's costs and the Kitchin Parties' costs of the amended summons. Pemba succeeded on its cross-claim, but the Kitchin Parties did not actively resist that claim and should not pay Pemba's costs; conversely, the Kitchin Parties were not awarded their costs of resisting Pemba's cross-claim because they stood to benefit if it failed. The Kitchin Parties succeeded on their own cross-claim, and the costs order in their favour should be against the Angelis Parties rather than Coverforce because their success was in substance by reason of Mr Angelis' conduct. Pemba should also pay 20% of the Kitchin Parties' costs...

Jurisdiction
Australia
Judgment Date
20 December 2019
Procedural Posture
Costs / On the Papers; Costs Following Judgment Delivered on 10 December 2019
Outcome
Costs orders made.
Legal Topics
['party/party Costs' 'costs Follow the Event' 'multiple Distinct Claims' 'cross Claims' 'misleading and Deceptive Conduct' 'statutory Assumptions Under S 129 of the Corporations Act 2001 (cth)']
['costs' 'equity Commercial List' 'corporations'] ['party/party Costs' 'costs Follow the Event' 'multiple Distinct Claims' 'cross Claims' 'misleading and Deceptive Conduct' 'statutory Assumptions Under S 129 of the Corporations Act 2001 (cth)']

Case Brief

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Procedural Posture

Costs / On the Papers; Costs Following Judgment Delivered on 10 December 2019

Legal Issues

  1. 1 ["Whether the plaintiffs should pay the first and second defendants' costs of the proceedings." "Whether the Kitchin Parties should pay Pemba's costs of Pemba's cross-claim." "Whether the Angelis Parties and Pemba should pay the Kitchin Parties' costs of resisting Pemba's cross-claim." "Whether the Angelis Parties, Coverforce or Pemba should bear the Kitchin Parties' costs on the Kitchin Parties' successful cross-claim." "Whether any discount should be applied to the Kitchin Parties' costs entitlement."]

Ratio Decidendi

The Angelis Parties were largely unsuccessful and accepted responsibility for Pemba's costs and the Kitchin Parties' costs of the amended summons. Pemba succeeded on its cross-claim, but the Kitchin Parties did not actively resist that claim and should not pay Pemba's costs; conversely, the Kitchin Parties were not awarded their costs of resisting Pemba's cross-claim because they stood to benefit if it failed. The Kitchin Parties succeeded on their own cross-claim, and the costs order in their favour should be against the Angelis Parties rather than Coverforce because their success was in substance by reason of Mr Angelis' conduct. Pemba should also pay 20% of the Kitchin Parties' costs...

Court Disposition

Costs orders made.

Orders

  • ["The plaintiffs pay the first and second defendants' costs of the proceedings." "The plaintiffs pay 80% of the third to fifth defendants' costs of the proceedings." "The first and second defendants pay 20% of the third to fifth defendants' costs of the proceedings."]