ZIMMERMAN HOLDINGS & ORS v. WALES & ORS and BAREL v. ZIMMERMAN HOLDINGS P/L [2002] NSWSC 447

New South Wales Supreme Court

CITATION : ZIMMERMAN HOLDINGS & ORS v. WALES & ORS and BAREL v. ZIMMERMAN HOLDINGS P/L [2002] NSWSC 447 CURRENT JURISDICTION: EQUITY FILE NUMBER(S) : SC 4586/01 and 1639/02 HEARING DATE(S) : 23/05/2002 JUDGMENT DATE : 31 May 2002

Zimmerman Holdings Pty Ltd - 1st Plaintiff Yaqob Rajwan - 2nd Plaintiff Baruch Rajwan - 3rd Plaintiff John Andrew Wales - 1st Defendant PARTIES : Downunder Pty Ltd - 2nd Defendant Eli Barel - 3rd Defendant Damiz Pty Ltd - 4th Defendant Isaac Barel - 5th Defendant Dennis Cooney - 6th Defendant JUDGMENT OF : Bryson J at 1

J. Simpkins & M. Dempsey (Massey Bailey) S. White (2nd & 3rd Pliantiffs) COUNSEL : C.J. Stevens QC (1st & 2nd Defendants) F. Corsaro SC (3rd, 4th, 5th Defendants) D.L. Williams & I. Griscti (6th Defendant) Massey Bailey (2nd & 3rd Plaintiffs) SOLICITORS : Kosmin & Associates (1st & 2nd Defendants) McLellands Solicitors (3rd, 4th, 5th Defendants) Riley Gray-Spencer (6th Defendants) CATCHWORDS : COSTS - solicitors - costs order against solicitors for purported plaintiff where no decision by company to bring proceedings and purported retainer by part of board was ineffective - consideration of basis on which order should be made - discretionary order under SCA s.76(1) not enforcement of common law liability for breach of warranty of authority - on review of discretionary considerations, solicitors were ordered to pay defendants' costs on indemnity basis with further order against purported directors who instructed them. LEGISLATION CITED : Supreme Court Act 1970; subs.76(1) Yonge v. Toynbee [1910] 1 KB 215 CASES CITED : Myers v. Elman (1940) AC 282 Nelson v. Nelson [1997] 1 WLR 233. AW & LM Forrest Pty Ltd v. Beamish (1998) 146 FLR 450 DECISION : See para.19 - Solicitors to pay defendants' costs on indemnity basis.