Toal v Aquarius Platinum Limited (No 2) [2004] FCA 678

FEDERAL COURT OF AUSTRALIA

Toal v Aquarius Platinum Limited (No 2) [2004] FCA 678

COSTS – discretion to award costs – indemnity costs – circumstances under which indemnity costs may be awarded – shareholder entitled to shares under scheme of arrangement – shares not issued – cash payment tendered in lieu – disregard by respondents of applicants' rights – public interest dimension – indemnity costs awarded – amended pleadings – costs thrown away by reason of amendments awarded. Federal Court of Australia Act 1976 (Cth)

Federal Court of Australia Rules Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 cited re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 72 FCR 151 cited MICHAEL TOAL and GARY TOAL v AQUARIUS PLATINUM LIMITED (formerly 'Strategic Platinum Mines Limited') ARBN 087 577 893 and AQUARIUS PLATINUM (AUSTRALIA) LIMITED (formerly 'Aquarius Exploration NL' and 'Aquarius Platinum NL') N3057 of 2002 FRENCH J 25 JUNE 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY N 3057 of 2002

BETWEEN: MICHAEL TOAL

FIRST APPLICANT

GARY TOAL

SECOND APPLICANT

AND: AQUARIUS PLATINUM LIMITED

(formerly 'Strategic Platinum Mines Limited')

ARBN 087 577 893

FIRST RESPONDENT

AQUARIUS PLATINUM (AUSTRALIA) LIMITED

(formerly 'Aquarius Exploration NL' and 'Aquarius Platinum NL')

SECOND RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 25 JUNE 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. Paragraph 3 of the orders made on 4 May 2004 is varied to read as follows: '3(1) The respondents are to pay the applicants' costs of the application on an indemnity basis. 3(2) The applicants are to pay the respondents' costs thrown away by reason of the last amendments to the application and statement of claim and are to pay the respondents' costs of the preparation of their submission in that regard not including the costs of the affidavit in support thereof. 3(3) The respondents are to pay the applicants' costs of the submission for indemnity costs.' Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.