Raffy Nominees Pty Ltd v nib Holdings Ltd (No 2) [2023] NSWSC 1294

Supreme Court New South Wales

Medium Neutral Citation: Raffy Nominees Pty Ltd v nib Holdings Ltd (No 2) [2023] NSWSC 1294 Hearing dates: 5 October 2023 Decision date: 01 November 2023 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) To the extent necessary, grant leave under s 440D(1)(b) of the Corporations Act 2001 (Cth) to the first, second and third defendants to proceed against the plaintiff; (2) Order that the plaintiff pay the first and second defendants' costs of these proceedings fixed in the amount of $251,941; (3) Order that the plaintiff pay the third defendant's costs of these proceedings fixed in the amount of $208,350; (4) Otherwise dismiss the notice of motion filed by the third defendant on 17 August 2023; (5) Order that the third defendant pay Matthew Vincent Donnellan's costs of the notice of motion filed on 17 August 2023; (6) Dismiss the notice of motion filed by the first and second defendants on 11 August 2023; (7) Order that the first and second defendants pay the first respondent's costs of the notice of motion filed on 11 August 2023. Catchwords: COSTS — Party/Party — Where costs order made in relation to a final hearing — Whether UCPR, r 36.16 operates to prevent the Court from varying costs order — Whether an application for gross sum costs against a party who has already been ordered to pay costs varies the costs order — Whether an application for costs against a third party varies the costs order — Costs order must be construed in the context in which it was made COSTS — Party/Party — Orders against non-parties — Where plaintiff enters external administration after costs order made against it — Whether plaintiff's sole director is liable for costs personally COSTS — Party/Party — Bases of quantification — Gross sum costs order Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 Bailey v Marinoff (1971) 125 CLR 529 Caboolture Park Shopping Centre Pty Ltd (in liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 Habib v Nationwide News Pty Ltd (No 2) [2010] NSWCA 291 HM&O Investments Pty Ltd (in Liq) v Ingram [2013] NSWSC 1778 Knight v F. P. Special Assets Ltd (1992) 174 CLR 178 Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 nib Holdings Ltd v Raffy Nominees Pty Ltd as trustee of the Whitecoat Holding Trust; Raffy Nominees Pty Ltd v nib Holdings Ltd [2023] NSWSC 715 nib Holdings Ltd v Raffy Nominees Pty Ltd as trustee of the Whitecoat Holding Trust (No 2) [2023] NSWSC 1036 Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor (No 2) [2021] NSWCA 98 PM Works Pty Ltd v Management Services Australia Pty Ltd trading as Peak Performance PM [2018] NSWCA Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancey t/as Fraser Clancey Lawyers (No 4) [2018] NSWCA 327 Roads and Traffic Authority of New South Wales, Council of the Shire of Evans & Pioneer Road Services Pty Ltd v Palmer (No 2) [2005] NSWCA 140 Rodi v Gelonesi [2016] NSWCA 348 Short v Crawley (No 45) [2013] NSWSC 1541 Xabregas v The Owners – Strata Plan No. 79205; Moallem v Consumer, Trader and Tenancy Tribunal & Ors (No 2) [2014] NSWSC 1027 Category: Costs Parties: Raffy Nominees Pty Ltd (Administrators Appointed) (Plaintiff | First Respondent on 8 August 2023 & 17 August 2023 Motions) nib Holdings Ltd (First Defendant | First & Second Applicants on 8 August 2023 & 11 August 2023 Motions) nib Health Funds Ltd (Second Defendant | First & Second Applicants on 8 August 2023 & 11 August 2023 Motions) Michelle McPherson (Third Defendant | Applicant on 17 August 2023 Motion) Matthew Donnellan (First Respondent on 11 August 2023 Motion & Second Respondent on 17 August 2023 Motion) Raffy Holdings Pty Ltd (Second Respondent on 11 August 2023 Motion & Third Respondent on 17 August 2023 Motion) Representation: Counsel: J Arnott SC (First and Second Defendants | First & Second Applicants on 8 August 2023 & 11 August 2023 Motions) S Murray (Third Defendant | Applicant on 17 August 2023 Motion) A Harding SC with M Youssef (First Respondent on 11 August 2023 Motion & Second Respondent on 17 August 2023 Motion) B Koch (Second Respondent on 11 August 2023 Motion & Third Respondent on 17 August 2023 Motion)