White ACT (in liquidation) v G B White & Ors [2004] NSWSC 303

White ACT (in liquidation) v G B White & Ors [2004] NSWSC 303

The plaintiff pursued very serious allegations of fraud without examining or calling evidence from persons who could have supported those allegations, failed to prove the alleged guarantee case, and maintained a claim for damages in circumstances where it had suffered no loss. Those matters, individually and together, were sufficient special or unusual features justifying an indemnity costs order in favour of the successful defendants.

Jurisdiction
Australia
Judgment Date
14 April 2004
Procedural Posture
Costs Application / Defendants' Notice of Motion Seeking Variation of Costs Order to Indemnity Costs After Dismissal of the Summons
Outcome
Defendants' motion for indemnity costs granted.
Legal Topics
['indemnity Costs' 'special or Unusual Features' 'party and Party Costs' 'liquidator Examinations' 'failure to Call Evidence' 'no Loss']
['civil Procedure' 'costs'] ['indemnity Costs' 'special or Unusual Features' 'party and Party Costs' 'liquidator Examinations' 'failure to Call Evidence' 'no Loss']

Case Brief

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Procedural Posture

Costs Application / Defendants' Notice of Motion Seeking Variation of Costs Order to Indemnity Costs After Dismissal of the Summons

Legal Issues

  1. 1 ["Whether the defendants' costs should be assessed on the indemnity basis." "Whether the plaintiff's failure to examine or call relevant staff witnesses in support of serious fraud allegations constituted a special or unusual feature justifying indemnity costs." 'Whether the plaintiff pursued allegations it could not prove and a damages claim where it had suffered no loss.' 'Whether creditor funding by ADC, the alleged vendetta, the indemnity arrangement, or the positions of Messrs Michael McAlary and Spinks justified indemnity costs.']

Ratio Decidendi

The plaintiff pursued very serious allegations of fraud without examining or calling evidence from persons who could have supported those allegations, failed to prove the alleged guarantee case, and maintained a claim for damages in circumstances where it had suffered no loss. Those matters, individually and together, were sufficient special or unusual features justifying an indemnity costs order in favour of the successful defendants.

Court Disposition

Defendants' motion for indemnity costs granted.

Orders

  • ['Order 2 made on 25 February 2004 be varied by adding after the word "costs" the words "such costs to be assessed and paid on the indemnity basis".' "For the avoidance of doubt, the defendants' costs include any reserved costs."]