COMBINED AUCTIONS PTY LTD v GRAY EISDELL TIMMS PTY LTD (NO 2) [1998] NSWCA 61

COMBINED AUCTIONS PTY LTD v GRAY EISDELL TIMMS PTY LTD (No 2)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY and STEIN JJA

24 February 1998

[1998] NSWCA 61

Costs — of trial — of appeal — appeal allowed in part — apportionment of costs

Gleeson CJ I agree with the orders as to costs proposed by Stein JA. Priestly JA I agree with Stein JA.

Stein JA On 5 December 1997 the court allowed the appeal in part and made the following orders:

1. Appeal upheld in regard to Young J's order that the appellant register in the name of the respondent the transfer to the respondent of Ms Berns' shares set aside; that order set aside.

2. Appeal in regard to the declaration that the resolutions purported to have been passed at a general meeting of the members of the appellant held on 4 October 1994 were void, dismissed.

3. Costs order below set aside.

4. Written submissions as to the costs orders this court should make in respect both of the trial and the appeal to be filed by the parties within seven days of the date of publication of the court's judgment.

Written submissions on costs have been received. The appellant's position is as follows:

As to the trial, the appellant should be allowed the whole of its costs up to 24 November 1994 and one-half of its costs of the hearing before Young J after that date.

As to the appeal, the appellant submits that it should be allowed three-quarters of its costs.

The respondent's position is that:

As to the trial, the respondent should pay one-half of the appellant's costs. As to the appeal, it should be ordered to pay 65% of the appellant's costs but receive a certificate under the Suitors' Fund Act.

The appeal and the trial involved essentially two issues. First, the correctness of the order made by Young J requiring the appellant to register in the name of the respondent the transfer to the respondent of Ms Berns' shares. Second, the validity of resolutions passed at a general meeting of the appellant held on 4 October 1994. More accurately, Young J declared all four resolutions passed at the meeting to be invalid and the appellant sought only to set-aside resolution number 3 as void, not all four resolutions.