In the matter of Aurora Funds Management Limited (No 2) [2019] NSWSC 1190

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Aurora Funds Management Limited (No 2) [2019] NSWSC 1190 Hearing dates: On the papers Date of orders: 10 September 2019 Decision date: 10 September 2019 Jurisdiction: Equity - Corporations List Before: Rees J Decision: 1. Vacate Order 5 made on 30 May 2019. 2. Order the first defendant to pay 65% of the plaintiff's costs of the proceedings on a party and party basis. Catchwords: COSTS — Where plaintiff sought declarations that defendant not validly appointed as responsible entity of managed fund — Plaintiff obtained relief sought — whether defendant's offer to remain neutral in proceedings should preclude costs order against it —whether defendant 'forced' to litigate — Use of submitting appearance save as to costs — Defendant sought apportionment of costs — Where several issues put by plaintiff unsuccessful — Large proportion of evidence, hearing and judgment referable to unsuccessful issues — Appropriate to depart from usual rule — Plaintiff awarded 65% of their costs. Legislation Cited: Australian Consumer Law, s 237 Corporations Act 2001 (Cth), Ch 6, s 1322 Uniform Civil Procedure Rules 2005 (NSW), r 6.11 Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Cretazzo v Lombardi (1975) 13 SASR 4 In the matter of Aurora Funds Management Limited [2019] NSWSC 630 Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645; [2014] NSWCA 317 Mobis Parts Australia Pty Ltd v Excel Insurance Co SE (No 2) [2019] NSWCA 19 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Sydney City Council v Geftlick (No 2) [2006] NSWCA 374 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2012) 86 ACSR 119; [2011] NSWCA 256 Turkmani v Visvalingam (No 2) [2009] NSWCA 279 Westralia Property Management Limited v Davison [2006] WASCA 203 Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 Category: Costs Parties: Aurora Funds Management Limited ACN 092 626 885 (Plaintiff)