Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 Hearing dates: 10 February 2016 Decision date: 08 March 2016 Before: Macfarlan JA at [1] Gleeson JA at [2] Leeming JA at [102] Decision: (1) Extend the time for filing of the summons for leave to appeal to 10 February 2016 and otherwise dispense with service of the summons. (2) To the extent necessary, grant leave to appeal. (3) Appeal allowed. (4) Set aside order 6 made by the primary judge on 17 November 2014, and in lieu thereof: Order that the appellant, Nicholas Heath, pay the plaintiffs' costs of the proceedings below from 30 May 2014 on an indemnity basis; (5) No order as to costs of the appeal with the intent that each party should bear their own costs of the leave application and the appeal. Catchwords: PROCEDURE – costs – s 98(1) Civil Procedure Act 2005 (NSW) – cost order against non-party – where plaintiff allegedly made misrepresentations prior to defendant entering lease – where the defendant alleged obstruction and access problems to leased premises caused loss of customers and business decline – where finding by primary judge of improper conduct of proceedings by director of defendant – knowing falsity of defendant's allegations – whether error in material finding of fact – House v King error – re-exercise of s 98 costs discretion – whether exceptional circumstances – where director of defendant had interest in litigation outcome as significant creditor and indirect shareholder of the defendant – where the director managed the litigation for the defendant – where the defendant impecunious – whether director of defendant acting reasonably should have realised no reasonable prospects of success Legislation Cited: Civil Procedure Act 2005 (NSW), ss 19(2), 56(1), 56(3), 56(4), 98(1), 98(4)(c) Corporations Act 2001 (Cth), s 471B Supreme Court Act 1970, ss 101(2)(c) Uniform Civil Procedure Rules 2005, rr 7.1(2)(a), 7.2, 7.2(1), 7.2(2)(a)(iv), 13.4 Cases Cited: Arena Management Pty Ltd (Receiver and Manager Appointed) Pty Ltd v Campbell Street Theatre Pty Ltd [2011] NSWCA 128 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Colgate-Palmolive Pty Ltd v Cussons (1993) 46 FCR 225 Commonwealth of Australia v Gretton [2008] NSWCA 117 FPM Constructions Pty Ltd v City of the Council of the Blue Mountains [2005] NSWCA 340 Greenacre Business Park Pty Ltd v Deliver Australia Pty Ltd (In Liq) [2014] NSWSC 1646 House v The King [1936] HCA 40; 55 CLR 499 Kebaro Pty Ltd v Saunders [2003] FCAFC 5 Knight v FP Special Assets Ltd [1992] HCA 28; 174 CLR 178 May v Christodoulou [2011] NSWCA 75; 80 NSWLR 462 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256 Yu v Cao [2015] NSWCA 276 Category: Principal judgment Parties: Nicholas Heath (Appellant) Greenacre Business Park Pty Limited (First Respondent) Samstone Pty Limited (Second Respondent) Sam Harb Pty Limited (Third Respondent) Deliver Australia Pty Limited (In Liquidation) (Fourth Respondent) Representation: Counsel: Mr D Klineberg (Appellant) Mr R McKeand SC (Respondents)