Morris Finance Ltd v Free (No 2) [2017] NSWSC 1514

Supreme Court New South Wales

Medium Neutral Citation: Morris Finance Ltd v Free (No 2) [2017] NSWSC 1514 Hearing dates: On papers Decision date: 07 November 2017 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Set aside the costs order made in favour of the first, third and fourth defendants on 3 August 2016 by Darke J in these proceedings. 2. In lieu thereof, order that: (i) the first defendant pay the plaintiff's costs of the determination of the separate question before Darke J, such costs to be assessed on the ordinary basis and such liability to be limited to the extent of the assets, if any, vested in the first defendant in his capacity as trustee of the property of the third defendant's bankrupt estate; and (ii) the third and fourth defendants be jointly and severally liable to pay the plaintiff's costs of the determination of the separate question before Darke J, such costs to be assessed on an indemnity basis. 3. Order the first defendant to pay the plaintiff's costs of the balance of these proceedings, such costs to be assessed on the ordinary basis and limited to the extent of the assets, if any, vested in the first defendant in his capacity as trustee of the property of the third defendant's bankrupt estate. 4. Liberty is granted to the third and fourth defendants to make any application, in writing, for a variation of these orders, such application to be made within 14 days of these orders and to be accompanied by any written submissions and evidence in support of such application. Catchwords: COSTS – Proceedings in which trustee in bankruptcy is a defendant – Ordinary rule or practice – Whether personal costs order should be capped by reference to the extent of the bankrupt's assets vested in the trustee in bankruptcy in that capacity