Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 6) [2020] FCA 928

FEDERAL COURT OF AUSTRALIA

Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 6) [2020] FCA 928 File number: SAD 12 of 2018

Judge: BESANKO J

Date of judgment: 6 July 2020

Catchwords: COSTS — where the proceeding concerned a number of claims made by the plaintiff, namely a claim in debt as against the first defendant, a claim that the first, fourth, fifth and sixth defendants engaged in misleading or deceptive conduct, a claim that the first, fourth, fifth and sixth defendants committed a breach of trust or fiduciary duty, a claim that the first defendant contravened s 286 of the Corporations Act 2001 (Cth), and a claim that the deed of company arrangement to which the first defendant was subject be terminated or set aside on various bases — where the plaintiff succeeded on the Debt Claim, the Claim for a contravention of s 286 and the DOCA Claim, but not on the Misleading or Deceptive Conduct Claim and the Breach of Trust Claim COSTS — where the plaintiff seeks an order that the defendants pay its costs of the proceeding — whether the various claims are sufficiently distinct — consideration of the appropriate apportionment of costs — where the plaintiff seeks an order in the alternative that it be awarded its costs of the Debt Claim and the DOCA Claim on an indemnity basis COSTS — where the plaintiff also seeks an order that the fourth to sixth defendants pay the first defendant's costs of and incidental to the proceeding, including its liability to pay costs to the plaintiff — whether it is appropriate to treat the first defendant and the fourth to sixth defendants as, in effect, one party COSTS — whether the second and third defendants should be deprived of their right of indemnity out of the assets of the first defendant in respect of their liability for the plaintiff's costs and in respect of their own costs — whether the orders sought by the plaintiff in relation to the second and third defendants' right of indemnity are "costs orders" and ought to have been pleaded — where the first defendant was represented by the fourth to sixth defendants and not the second and third defendants — where the second and third defendants participated in the proceeding for the asserted purposes of assisting the Court and defending allegations made by the plaintiff against them — whether such purposes engage the right of indemnity