KF Capital v Davison [2020] NSWSC 1595

Supreme Court New South Wales

Medium Neutral Citation: KF Capital v Davison [2020] NSWSC 1595 Hearing dates: 9 November 2020 Date of orders: 13 November 2020 Decision date: 13 November 2020 Jurisdiction: Common Law Before: Campbell J Decision: (1) The first defendant to pay the first plaintiff's costs of its proceedings against him; (2) The first defendant to pay the second plaintiff's costs of its proceedings against him; (3) The plaintiffs' costs of the proceedings against the first defendant including the indemnity costs order made on 23 May 2019 are payable in a gross sum of $140,000 under s 98(4)(c) of the Civil Procedure Act 2005 (NSW); (4) The sum specified in Order 3 is payable to the first plaintiff whose receipt whereof discharges the liability of the first defendant under orders 1 and 2. Catchwords: COSTS – application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) – cost principles – where proceedings stayed by force of the Bankruptcy Act – where plaintiffs' seeks gross sum cost order following the defendant filing for bankruptcy – where plaintiff's bankruptcy petition evidenced capitulation in relation to the plaintiffs' claim - quantification of the appropriate specific gross sum to be awarded – gross sum cost order made Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Bankruptcy Act 1966 (Cth) ss 58(3), 82, 102 (3), 102(5) Corporations Act 2001 (Cth) s 471B Cases Cited: Chapman v Luminis Pty Ltd [2003] FCA 162 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56 Muhibbah Engineering (M) BHD & Anor v Trust Company Limited & Anor [2009] NSWCA 205 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84 ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270 Re Minister for Immigration and Ethnic Affairs, ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd (No 4) [2018] NSWSC 431 Category: Procedural and other rulings Parties: KF Capital Limited (First Plaintiff) Endeavour Timber Pty Ltd (receivers and managers appointed) (Second Plaintiff) Brett William Davison (First Defendant) Representation: Counsel: J Hogan-Doran SC (First and Second Plaintiffs) Brett William Davison (Self Represented)