Coyte & Anor v Norman & Anor; Centre Capital (Newcastle) Pty Ltd & Anor v B Scorer & Ors [2016] NSWSC 1428

Supreme Court New South Wales

Medium Neutral Citation: Coyte & Anor v Norman & Anor; Centre Capital (Newcastle) Pty Ltd & Anor v B Scorer & Ors [2016] NSWSC 1428 Hearing dates: 24 – 27, 31 May, 1, 3, 7– 8, 14 and 24 June 2016, costs submissions 22 September 2016 Decision date: 06 October 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Courts orders that in proceedings 2013/43716: the Statement of Claim be dismissed; the Cross-Claim be dismissed; the Plaintiffs pay the Defendants' costs of the claim brought by the Plaintiffs against the Defendants, as agreed or as assessed; and the Cross-Claimants pay the Cross-Defendants' costs of the Cross-Claim brought by the Cross-Claimants against the Cross-Defendants, as agreed or as assessed. The Court orders that in proceedings 2013/252885: the Amended Statement of Claim be dismissed as against the First, Second and Fourth Defendants; each of the Plaintiffs and the Second Defendant should pay their own costs of the proceedings; there be no order as to the costs of the First and Fourth Defendants of the proceedings; and there be granted liberty to apply with respect to the claims against the Third Defendant, United Nominees Pty Limited, within 28 days. Catchwords: PROCEDURE — Costs — where plaintiffs/cross-defendants in the first proceedings failed in respect of its statement of claim but succeeded in defending cross-claim brought against them – where plaintiffs/cross-defendants sought orders for costs on the basis that given the nature of the cross-claim the plaintiffs were in effect defendants that were substantially successful in defending the proceedings – where plaintiffs/cross-defendants sought costs on an indemnity basis on the basis of a Calderbank offer notwithstanding the plaintiffs' claims against the defendants were unsuccessful – whether costs should follow the event in respect of the statement of claim and the cross-claim – whether it was unreasonable for the cross-claimants to reject Calderbank offer. PROCEDURE — Costs — where the plaintiffs in the second proceedings sought costs against defendant in circumstances where the plaintiffs succeeded in establishing breach of director's duty against the defendant but failed to establish any claim for loss – whether plaintiffs should be awarded costs in circumstances where the plaintiffs failed to establish any claim for loss. PROCEDURE — Judgments and orders — Disputed issues remaining before orders can be made to give effect to primary judgment in proceedings — where plaintiffs in the second proceedings sought a declaration that the defendant was in breach of director's duty – whether declaration ought not be made in circumstances that it would lack utility and was prefatory to claim for damages. Legislation Cited: - Australian Securities and Investments Commission Act 2001 (Cth) - Civil Procedure Act 2005 (NSW), s 98 - Corporations Act 2001 (Cth), ss 180, 181, 182 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: - Attorney-General (NSW); Ex rel Corporate Affairs v Australian Softwood Forests Pty Ltd [1979] 2 NSWLR 73 - Calderbank v Calderbank [1975] 3 All ER 333 Commonwealth of Australia v Gretton [2008] NSWCA 117 - E and J Gallo Winery v Lion Nathan Australia Pty Ltd (No 2) [2009] FCAFC 47 - Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435 - Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 - Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; (1974) 131 CLR 286 - Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816 - Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 - OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120 - OXS Pty Ltd v Sydney Harbour Foreshore Authority and Minister for Planning and Environment [2014] NSWSC 1284 - Re Alsafe Security Products Pty Ltd atf The Alsafe Trust (in liq) [2016] NSWSC 575 Texts Cited: - PW Young, C Croft and ML Smith, On Equity, (2009, Lawbook Co) Category: Costs Parties: 2013/43716 Robert Edward Coyte (First Plaintiff/Second Cross-Defendant) Blooms Investment Nominees Pty Ltd (Second Plaintiff/First Cross-Defendant) Michael Norman (First Defendant) Centre Capital (Newcastle) Pty Ltd (Second Defendant) Centre Capital Pty Ltd (First Cross-Claimant) Centre Capital Securities Pty Ltd (Second Cross-Claimant) Shartru Wealth Management Pty Ltd (Third Cross-Defendant)