Wharfside Pty Ltd v McCormick [2010] NSWSC 398

Wharfside Pty Ltd v McCormick [2010] NSWSC 398

Because there was no determination on the merits and the parties compromised before such determination, it is not appropriate to assess hypothetical facts or conduct a detailed inquiry merely to determine entitlement to indemnity costs. The application for indemnity costs is therefore dismissed.

Parties
Plaintiff: Wharfside Pty Limited; Defendant: Megan Rae McCormick; Defendant: John Richard Paul Hunt; Defendant: Craig Edward Cavanagh; Defendant: Richard Michael Burr; Defendant: Shane Russell Williamson; Defendant: Andrew Mark Williams; Defendant: Dale Frances Cliff; Defendant: William Robert Blake; Defendant: Paul Michael O'Dea; Defendant: John Dominic Toigo; Defendant: Timothy David Ferrier; Defendant: Michael John Sparksman; Defendant: Steven Mark Cardell trading as ClarkeKann
Jurisdiction
Australia
Judgment Date
06 May 2010
Procedural Posture
Corporations Act S 459 G Application / Application for Assessment of Costs on the Indemnity Basis After Compromise
Outcome
Application for order for assessment of costs on the indemnity basis dismissed.
Legal Topics
Statutory Demand, Indemnity Costs, Costs Assessment, Genuine Dispute, Offsetting Claim, Compromise, Misconduct (relevant Delinquency)
Corporations Law Civil Procedure Statutory Demand Indemnity Costs Costs Assessment Genuine Dispute Offsetting Claim Compromise +1 more

Case Brief

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Parties

Wharfside Pty Limited

Plaintiff

Megan Rae McCormick

Defendant

John Richard Paul Hunt

Defendant

Craig Edward Cavanagh

Defendant

Richard Michael Burr

Defendant

Shane Russell Williamson

Defendant

Andrew Mark Williams

Defendant

Dale Frances Cliff

Defendant

William Robert Blake

Defendant

Paul Michael O'Dea

Defendant

John Dominic Toigo

Defendant

Timothy David Ferrier

Defendant

Michael John Sparksman

Defendant

Steven Mark Cardell trading as ClarkeKann

Defendant

Procedural Posture

Corporations Act S 459 G Application / Application for Assessment of Costs on the Indemnity Basis After Compromise

Legal Issues

  1. 1 Whether costs awarded to the plaintiff should be assessed on the indemnity basis following consent orders setting aside a statutory demand and awarding costs

Ratio Decidendi

Because there was no determination on the merits and the parties compromised before such determination, it is not appropriate to assess hypothetical facts or conduct a detailed inquiry merely to determine entitlement to indemnity costs. The application for indemnity costs is therefore dismissed.

Court Disposition

Application for order for assessment of costs on the indemnity basis dismissed.