Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd (Costs) [2024] NSWSC 756

Supreme Court New South Wales

Medium Neutral Citation: Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd (Costs) [2024] NSWSC 756 Hearing dates: 20 June 2024 Date of orders: 20 June 2024 Decision date: 20 June 2024 Jurisdiction: Equity Before: Hammerschlag CJ in Eq Decision: (1) Hunt Prosperity's costs of the application up to and including 16 May 2024 will be costs in the cause of the proceedings. (2) There will be no order with respect to the costs incurred from 17 May 2024 to the intent that each party shall bear their own. (3) Unless and until Hunt Prosperity becomes finally entitled to the costs covered by order (1), those costs are not to be paid out of the Fund. (4) Hunt Prosperity's costs incurred from 17 May 2024 are not to be paid out of the Fund. Catchwords: COSTS – Application by trustee for judicial advice that it is justified in terminating a trading trust – Where trustee relies on counsel's opinion to seek judicial advice but where, at the time of first bringing the application, opposition by unitholders to terminate the trust was not yet clear, although it became clear within a short period of time and the trustee nevertheless persisted in the application over opposition – Where trustee and those unitholders are locked in litigation concerning, amongst others, whether the trustee has previously breached trust and the trial is imminently to be heard – HELD – Trustee's costs to be costs in the cause for the period up to the unitholders' opposition to the application being made clear, and thereafter, each party to bear their own – Appropriate to order that the trustee not recover those costs up to opposition to the application being made clear from the trust fund unless and until it finally succeeds in the principal proceedings Legislation Cited: Trustee Act 1925 (NSW) s 63 Uniform Civil Procedure Rules 2005 (NSW) r 42.25 Cases Cited: Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd [2024] NSWSC 680 Category: Costs Parties: Aurora Australasia Pty Ltd (Plaintiff/First Cross-Defendant) Hunt Prosperity Pty Ltd (Applicant on the Motion/First Defendant/Second Cross-Defendant) AMHP Pty Ltd (Second Defendant/First Cross-Claimant) Adam Hartley (Second Cross-Claimant) David James Driver (Third Cross-Defendant) Representation: Counsel: J Pennay (Solicitor) (Plaintiff/First and Third Cross-Defendants) A Hochroth (Applicant on the Motion/First Defendant/Second Cross-Defendant) JM Ireland KC (Second Defendant/Cross-Claimants)