Tenser v Quigley [2016] FCAFC 178

Tenser v Quigley [2016] FCAFC 178

The primary judge erred in not ordering that Mr Quigley pay Mr Tenser's costs of Mr Quigley's claim, as Mr Tenser was wholly successful and no finding or order was made against him; the judge also erred in tying the order for transfer of shares to repayment of the $75,000 loan, given there was no contractual or factual basis for this; however, dismissal of the cross-claim was correct as it was without foundation, and thus Mr Tenser was properly ordered to pay Mr Quigley's costs of defending the cross-claim.

Jurisdiction
Australia
Judgment Date
13 December 2016
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed in part.
Legal Topics
['awards of Costs' 'appeal Against Costs' 'shareholder Disputes' 'cross Claim' 'conditional Orders']
['costs Law' 'commercial Law' 'corporations Law'] ['awards of Costs' 'appeal Against Costs' 'shareholder Disputes' 'cross Claim' 'conditional Orders']

Case Brief

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ["Whether primary judge erred in not ordering the respondent to pay the appellant's costs of defending the respondent's claim" 'Whether primary judge erred in ordering the retransfer of shares conditional on the repayment of a loan' "Whether primary judge erred in ordering the respondent to pay the costs of the appellant's cross-claim"]

Ratio Decidendi

The primary judge erred in not ordering that Mr Quigley pay Mr Tenser's costs of Mr Quigley's claim, as Mr Tenser was wholly successful and no finding or order was made against him; the judge also erred in tying the order for transfer of shares to repayment of the $75,000 loan, given there was no contractual or factual basis for this; however, dismissal of the cross-claim was correct as it was without foundation, and thus Mr Tenser was properly ordered to pay Mr Quigley's costs of defending the cross-claim.

Court Disposition

Appeal allowed in part.

Orders

  • ['Order 2 made by the primary judge set aside.' "The respondent to pay the appellant's costs of the appellant's application heard and determined by the primary judge." 'No order as to costs of the appeal.']