WAM Active Limited v Keybridge Capital Limited (No 3) [2024] NSWSC 1592

WAM Active Limited v Keybridge Capital Limited (No 3) [2024] NSWSC 1592

Costs were apportioned so that WAM Active pay 70% of Keybridge's costs, reflecting Keybridge's overall success on the winding up application, but departing from the general rule to account for significant time and costs on the separable 'abuse of process' issue, on which Keybridge failed. Application for indemnity costs was refused as WAM Active's conduct was not unreasonable given the circumstances.

Parties
Plaintiff: WAM Active Limited; First Defendant: Keybridge Capital Limited; Second Defendant: Nicholas Francis John Bolton; Third Defendant: Crotto del Nino S.r.l. 03205830130; Fourth Defendant: Frank Antony Catalano; Fifth Defendant: John Dean Patton
Jurisdiction
Australia
Judgment Date
11 December 2024
Procedural Posture
Corporations/equity Proceeding (costs) / Costs Determination After Substantive Judgment
Outcome
Costs orders made as specified. WAM Active's costs for application for leave to bring derivative action to be costs in the cause; WAM Active to pay 70% of Keybridge's costs of the proceedings. Indemnity costs refused.
Legal Topics
Costs, Derivative Actions, Winding Up, Oppression, Indemnity Costs
Equity Corporations Civil Procedure Costs Derivative Actions Winding Up Oppression Indemnity Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 15 Party arguments 2
Sign in to unlock

Parties

WAM Active Limited

Plaintiff

Keybridge Capital Limited

First Defendant

Nicholas Francis John Bolton

Second Defendant

Crotto del Nino S.r.l. 03205830130

Third Defendant

Frank Antony Catalano

Fourth Defendant

John Dean Patton

Fifth Defendant

Procedural Posture

Corporations/equity Proceeding (costs) / Costs Determination After Substantive Judgment

Legal Issues

  1. 1 Appropriate order as to costs following determination of winding up and derivative action applications
  2. 2 Whether successful defendant should receive indemnity costs
  3. 3 Whether costs should be apportioned for partial success/failure on separable issues

Ratio Decidendi

Costs were apportioned so that WAM Active pay 70% of Keybridge's costs, reflecting Keybridge's overall success on the winding up application, but departing from the general rule to account for significant time and costs on the separable 'abuse of process' issue, on which Keybridge failed. Application for indemnity costs was refused as WAM Active's conduct was not unreasonable given the circumstances.

Court Disposition

Costs orders made as specified. WAM Active's costs for application for leave to bring derivative action to be costs in the cause; WAM Active to pay 70% of Keybridge's costs of the proceedings. Indemnity costs refused.

Orders

  • Leave granted for Plaintiff to bring proceedings on behalf of First Defendant against Second to Fifth Defendants as per s 237 Corporations Act 2001 (Cth).
  • Plaintiff's winding up and oppression claims dismissed.