Noble Investments Pty Ltd v Southern Cross Exploration NL [2010] FCA 214

Noble Investments Pty Ltd v Southern Cross Exploration NL [2010] FCA 214

The plaintiffs were not ready for trial because their opening advanced allegations not pleaded in the statement of claim and they had not prepared necessary evidence for discretionary relief. Leave to discontinue was granted, but the defendant was entitled to costs thrown away. Indemnity costs were warranted from 12...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 March 2010
Procedural Posture
Corporations Proceeding Alleging Oppression Under Ss 232 and 233 of the Corporations Act 1974 (cth) / Trial Listed; Plaintiffs Applied for Leave to Discontinue and Defendant Sought Costs and Conditions
Outcome
Leave to discontinue granted with costs and restraint conditions; Noble Investments Superannuation Fund Pty Ltd joined as a plaintiff.
Legal Topics
['shareholder Oppression' 'discontinuance of Proceeding' 'indemnity Costs' 'stay or Restraint on Further Proceedings Until Costs Paid' 'pleadings and Evidence at Trial']
['corporations Law' 'civil Procedure' 'costs'] ['shareholder Oppression' 'discontinuance of Proceeding' 'indemnity Costs' 'stay or Restraint on Further Proceedings Until Costs Paid' 'pleadings and Evidence at Trial']

Source-derived case record

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Procedural Posture

Corporations Proceeding Alleging Oppression Under Ss 232 and 233 of the Corporations Act 1974 (cth) / Trial Listed; Plaintiffs Applied for Leave to Discontinue and Defendant Sought Costs and Conditions

Legal Issues

  1. 1 ['Whether the plaintiffs should be granted leave to discontinue the proceeding under O 22 r 2(d) of the Federal Court Rules.' "Whether the plaintiffs should pay the defendant's costs on a party and party basis or indemnity basis." 'Whether the plaintiffs should be restrained from bringing a further proceeding on the same or substantially the same cause of action until the ordered costs are paid.' 'Whether the plaintiffs were ready to proceed to trial given the state of the pleadings and absence of oral evidence.']

Ratio Decidendi

The plaintiffs were not ready for trial because their opening advanced allegations not pleaded in the statement of claim and they had not prepared necessary evidence for discretionary relief. Leave to discontinue was granted, but the defendant was entitled to costs thrown away. Indemnity costs were warranted from 12 October 2009 because by the final directions date the plaintiffs should have obtained advice on evidence, reviewed the pleadings and determined the evidence necessary for trial. A restraint on a further substantially similar proceeding was appropriate only if the defendant filed a bill of costs for taxation within six weeks.

Court Disposition

Leave to discontinue granted with costs and restraint conditions; Noble Investments Superannuation Fund Pty Ltd joined as a plaintiff.

Orders

  • ['Noble Investments Superannuation Fund Pty Ltd as the trustee of the Noble Investments Superannuation Fund be joined as a plaintiff.' 'Leave be granted to the plaintiffs to discontinue the proceeding.' "The plaintiffs pay the defendant's costs from the commencement of the proceeding to 11 October 2009 on a party...