MIS Funding No 1 Pty Limited v N W Truskett (No 2); In the matter of Willmott Forests Limited (No 2) [2017] NSWSC 1157

Supreme Court New South Wales

Medium Neutral Citation: MIS Funding No 1 Pty Limited v N W Truskett (No 2); In the matter of Willmott Forests Limited (No 2) [2017] NSWSC 1157 Hearing dates: Written submissions as to costs, 16 and 18 August 2017 Decision date: 31 August 2017 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court orders that Mr Truskett pay MIS Funding No 1 Pty Ltd's costs of proceeding no 2013/258692 and proceeding no 2016/42689 on an ordinary basis. Catchwords: COSTS — Party/Party — Application for indemnity costs – where successful party sues as assignee of contract in which unsuccessful party agreed to pay assignor's costs of enforcing contract

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers – whether unreasonable not to accept Calderbank offer Legislation Cited: - Civil Procedure Act 2005 (NSW), s 98 - Uniform Civil Procedure Rules 2005 (NSW), rr 42.1–42.2, 42.5 Cases Cited: - Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 - Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] Ch 171 - Kyabram Property Investments Pty Ltd v Murray [2005] NSWCA 87 - Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 3) [2010] NSWSC 1139 - MIS Funding No 1 Pty Ltd v Truskett [2017] NSWSC 1002 - Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816 - Re Alsafe Security Products Pty Ltd atf The Alsafe Trust (in liq) [2016] NSWSC 575 - Westpac Banking Corporation v Mason [2011] NSWSC 1241 Category: Costs Parties: 2013/258692 MIS Funding No 1 Pty Limited (Plaintiff/Cross-Defendant) Neil William Truskett (Defendant/Cross-Claimant 2016/42689 Neil Truskett (Plaintiff) Marcus Derham (First Defendant) Willmott Forests Limited (receivers and managers appointed (in liq) (Second Defendant) MIS Funding No 1 Pty Limited (Third Defendant) Representation: Counsel: 2013/258692 C H Cassimatis (Plaintiff/Cross-Defendant) R Freeman (Defendant/Cross-Claimant) 2016/42689 R Freeman (Plaintiff) C H Cassimatis (Third Defendant)