Correa v Whittingham (No 2) [2013] NSWCA 471

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Correa v Whittingham (No 2) [2013] NSWCA 471 Hearing dates: On the papers Decision date: 23 December 2013 Before: Barrett JA at [1]; Gleeson JA at [2]; Tobias AJA at [101] Decision: (1) Order that Mr Whittingham (the respondent) pay 50 per cent of the appellants' costs of the proceedings in the Court of Appeal. (2) The respondent to have a certificate under the Suitors' Fund Act 1951 if otherwise qualified. (3) Order that Mr Whittingham (the defendant) pay 40 per cent of the plaintiffs' costs of the proceedings in the Equity Division including the costs of: (a) the application heard by Black J on 13 March 2012; and (b) the interlocutory application for an injunction heard by Brereton J on 30 September 2009. (4) The Court declares that the respondent is not entitled any right of indemnity or lien over the property of the second appellant for: (a) his liability to the appellants for costs in accordance with Orders 1 and 3 above; and (b) any of his own costs of the proceedings below and of the appeal, with the intent that he personally bear his own costs. (5) In the event that the amount of remuneration and expenses determined by the primary judge pursuant to the remittal of the respondent's claim in [4], [5] and [6] of the amended interlocutory process filed 20 February 2012 (in accordance with Order 5 made by this Court on 15 August 2013), be less than the amount already paid to the respondent in respect of his claims for remuneration and expenses as the purported administrator and deed administrator of the second appellant, the respondent pay to the second appellant the difference between the amount already paid to him (including property furnished by way of security to the extent that it has not been already reimbursed to the second appellant) and the amount assessed by the primary judge. [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 - costs - general rule costs follow the event - where appellants seek costs of the appeal, costs of the application and costs at first instance - where appellants seek an order that the respondent personally bear his own costs of the appeal - where delay in making a claim - whether successful party should be deprived of the costs relating to an issue on which the successful party lost - whether a Deed of Company Arrangement may have binding force independently of the Corporations Act 2001 Legislation Cited: Civil Procedure Act 2005, s 98 Corporations Act 2001, ss 128, 129, 436A, 444D, 444G, 445D, 447A, 447C, 447E, 448A, 449E Registered Clubs Act 1976, s 41 Supreme Court Rules r 11.2 Uniform Civil Procedure Rules , r 42.1 Cases Cited: Amlaki FZ LLC v Pinnacle Network (Aust) Pty Ltd [2008] FCA 1491 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Brandrill Ltd v Newmont Yandal Operations Pty Ltd [2006] NSWSC 974; 24 ACLC 1,179 Elderslie Finance Corporation Ltd v Australian Securities Commission [1993] 11 ACSR 157,161 Elite Protective Service Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373 Golski v Kirk (1987) 14 FCR 143 Griffiths v Australian Broadcasting Corporation (No 2) [2011] NSWCA 145 Macquarie International Health Clinic Pty Ltd v South Sydney West Area Health Services (No 2) [2011] NSWCA 171 McIntosh & Anor v CMX Technologies Pty Ltd (Administrators Appointed) [2005] NSWSC 1282; 56 ACSR 283 Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 Monks v Poynice Pty Ltd (1987) 8 NSWLR 662 Parkview Constructions Pty Ltd v Tayeh [2009] NSWSC 186 Reed Constructions Australia Ltd v DM Fabrications Pty Ltd [2007] NSWSC 1190; 25 ACLC 1,463 Re Employ (No 96) Pty Ltd (in liq) [2013] NSWSC 456 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 1106 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1987) 8 NSWLR 270 Waters v PC Henderson (Australia) Pty Ltd [1994] NSWCA 338; 254 ALR 328 Windsurfing International Inc v Petit (1987) AIPC 90-441 Woolworths Ltd v Strong (No 2) [2011] NSWCA 72; 80 NSWLR 445 Category: Costs Parties: Dolores Correa (First Appellant) The Spanish Club Limited (Subject to a Deed of Company Arrangement) (Second Appellant) Kenneth Michael Whittingham (Respondent) Representation: Counsel: V R W Gray (Appellants) G E S Ng (Respondent) Solicitors: Somerset Ryckmans (Appellants) Norton Rose (Respondent) File Number(s): 2012/190786 Decision under appeal Citation: [2012] NSWSC 526 Date of Decision: 2012-05-21 00:00:00 Before: Black J File Number(s): 2009/290732