Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266 Hearing dates: 12 August 2013 Decision date: 19 August 2013 Before: Basten JA at [1]; Sackville AJA at [30] Decision: (1) Direct that the orders made by Hallen J in the Equity Division on 23 May 2013, as entered in the Court's computerised record system, be varied to read: (1) Dismiss the application brought by Tanamerah Estates Pty Ltd and James Tydeman to set aside or vary the costs order made on 6 February 2013 in these proceedings. (2) Order that Tanamerah Estates Pty Ltd and James Tydeman pay the defendant's costs of the application to set aside or vary the costs order previously made, being limited to the costs incurred in filing submissions in reply and attending to take judgment. (3) Subject to the orders made by Bergin CJ in Eq on 8 March 2013, dismiss the motion filed by Tanamerah Estates Pty Ltd on 18 February 2013. (4) Direct that the costs orders made against Mr Tydeman may be enforced forthwith. (5) Subject to order (6), direct that the costs order made against Tanamerah Estates Pty Ltd may be enforced forthwith. (6) In the event that Tanamerah Estates Pty Ltd retains a solicitor to act for it in the proceedings, and in the event that the parties are unable to reach agreement with respect to the payment of costs incurred to date, grant leave to Tanamerah Estates Pty Ltd to seek a stay of the enforcement of the costs orders made against it. (2) Extend the time for the applicants to file a summons seeking leave to appeal up to and including 29 July 2013. (3) Dismiss the application for leave to appeal. (4) Order the applicants to pay the costs of the respondent in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - parties - identification - whether director entitled to commence and carry on proceedings for company - director authorised agent of company - director joined as party to proceedings - whether director could only be a plaintiff if director had a personal cause of action against the defendant, separate from that of the company - Uniform Civil Procedure Rules 2005, r 7.1