Coyte & Anor v Norman & Anor; Centre Capital

Supreme Court of NSW|2016-06-24|Before: Black J

Background

On 7 September 2016, I delivered my judgment ([2016] NSWSC 1242) ("earlier judgment") in these two proceedings, which were heard together.
In the first of the proceedings, 2013/43716 ("Coyte proceedings"), Mr Coyte and Blooms Investment Nominees Pty Limited ("Blooms") brought proceedings against Mr Norman and Centre Capital (Newcastle) Pty Ltd ("CCN"). Mr Coyte and Blooms claimed several money amounts from Mr Norman and CCN as due on termination of a joint venture arrangement between the parties, and sought a declaration that certain shares were held in escrow on behalf of Blooms. In the earlier judgment, I held that their claim in the Coyte proceedings in respect of an alleged "Termination Agreement", their claim in respect of the shares, and their claim in respect of a further agreement described as the "Collaborative" failed.
By a First Cross-Claim Further Amended Statement of Cross-Claim ("ASOCC") filed in the Coyte proceedings, Centre Capital Pty Limited ("CCPL") and Centre Capital Securities Pty Ltd ("CCS"), which were companies associated with Mr Norman, brought claims against the Coyte parties, comprising Mr Coyte, Blooms and Shartru Wealth Management Pty Ltd ("Shartru"). I held that CCPL's and CCS's claim in respect of restitution failed; a "Further Agreement" alleged by CCPL and CCS and the claims under it were not established; CCPL's and CCS's claim that Mr Coyte and Blooms diverted clients or client income of the Centre Capital Group in breach of the Further Agreement failed, because that agreement was not established; and claims for breach of trust, breach of director's statutory duties relating to payments made to interests associated with Mr Coyte from income of the Mutual Fund received by CCS prior to June 2012 and diversion of funds or clients to Shartru from July 2012 also failed. A claim against Shartru also failed, because the claim against Mr Coyte and Blooms of which it was derivative had failed.

Orders and costs in the Coyte proceedings

The parties agree that each of the claims and cross-claims brought between the Coyte parties and the Norman parties in the Coyte proceedings should be dismissed. The Norman parties submit that the appropriate order for costs in the Coyte proceedings would be that Mr Coyte and Blooms pay Mr Norman's and CCN's costs of the primary claim in the Coyte proceedings, and the Cross-Claimants, CCPL and CCS, pay the Coyte parties' costs of the Cross-Claim. The Coyte parties seek an order that the Norman parties pay their costs of the proceedings.
The Norman parties draw attention to s 98 of the Civil Procedure Act 2005 (NSW) and submit, uncontroversially, that the court's discretion as to costs must be exercised judicially, that is to say rationally and for the purpose for which it was conferred: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [63]-[66]. Section 98 of the Civil Procedure Act confers a discretionary power to determine costs on the court and requires that that discretion be exercised judicially, and r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides that: "Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs."
In Commonwealth of Australia v Gretton [2008] NSWCA 117, Hodgson JA with whom Mason P agreed observed (at [121]) that: "In my opinion, underlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs. Costs follow the event generally because, if a plaintiff wins, the incurring of costs was the defendant's responsibility because the plaintiff was caused to incur costs by the defendant's failure otherwise to accord to the plaintiff that to which the plaintiff was entitled; while if a defendant wins, the defendant was caused to incur costs in resisting a claim for something to which the plaintiff was not entitled … Departures from the general rule that costs follow the event are broadly based on a similar approach." [Citations omitted] That observation was recently cited, with apparent approval, by the Court of Appeal in Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 at [98].
The Coyte parties submit that the Norman parties were the true plaintiffs in the proceedings, and it seems to me that there is substantial force in that submission, when regard is had to the extent of the evidence and hearing time devoted to the Norman parties' Cross-Claim in the Coyte proceedings. The Coyte parties point out that CCPL's and CCS's Cross-Claim in the Coyte proceedings involved seven separate claims and, as I observed in the earlier judgment, that matter had significantly contributed to the complexity of the proceedings. I also accept that, as the Coyte parties contend, that Cross-Claim, in which CCPL and CCS were unsuccessful, raised substantially wider issues than the primary claim brought by Mr Coyte and Blooms in those proceedings, in which Mr Coyte and Blooms were also unsuccessful, and took up a substantially larger part of the cross-examination and the hearing time. CCN and CCS were, of course, the named plaintiffs in the Scorer proceedings.
The Coyte parties also point out that the Norman parties were and are wholly owned and controlled by Mr Norman, and it seems to me that that can be treated as a relevant matter, without neglecting the fact that Mr Norman and the companies which he controls are separate legal entities. The Coyte parties also advance other submissions, including as to the findings made by the Court in respect of Mr Norman's evidence. It has not been necessary to address those submissions, given the conclusions that I have reached on other grounds.
The Coyte parties submit that they were substantially successful in defending the proceedings as, in effect, defendants, and should be entitled to their costs. The difficulty with that proposition is, it seems to me, that the Coyte parties failed in their claim against Mr Norman and CCN in the Coyte proceedings, which was no means an insubstantial part of those proceedings although it was of lesser scope than CCPL's and CCS's Cross-Claim, notwithstanding their success in defending that Cross-Claim and CCN's and CCS's claim in the Scorer proceedings. Accepting that that Cross-Claim took up a substantially larger part of the Coyte proceedings than the Coyte parties' claim, it does not follow that the outcome of the Coyte parties' claim can simply be ignored, in making an order for costs in favour of the Coyte parties that does not reflect their failure in that claim.
The Norman parties submit that costs in the Coyte proceedings should follow the respective events, so that Mr Coyte and Blooms should pay their costs of the claim in the Coyte proceedings and CCPL and CCS should pay the Coyte parties' costs of the Cross-Claim in the Coyte proceedings, and submit that that is the ordinary result contemplated by UCPR r 42.1, unless it appears to the Court that some other order should be made. The Norman parties recognise that such an order may involve some work in an assessment, so far as it requires an allocation of costs to the claim and the Cross-Claim, but submit that a broader approach, such as an order that each party pay its own costs regardless of the outcome of the claims, has a significant potential for unfairness. The Norman parties also submit, and I accept, that some claims may have involved more work and costs than others, and that supports the making of separate orders for the assessment of costs, so that those differences can be accounted for.
The Norman parties also draw attention to the fact that the Defendants in the Coyte proceedings, Mr Norman and CCN, were not the same as the Cross-Claimants in the Coyte proceedings, CCPL and CCS. I give limited weight to that submission, where the Cross-Claimants brought their Cross-Claim in those proceedings, rather than in separate proceedings, presumably because they recognised, correctly, a substantial overlap of the relevant factual issues. The Norman parties also submit that Mr Norman is entitled to a costs order in his favour, where he was named as a defendant in the Coyte proceedings; the claims against him were in relation to an alleged agreement to purchase Mr Coyte's share in the relevant business; and, the Norman parties submit, that claim failed and was never arguable against Mr Norman personally. The Norman parties also point out that a second claim by the Coyte parties, relating to marketing obligations, was abandoned early in the hearing, with an agreement that the costs of that claim be costs in the cause. I also give little weight to these matters. The Defendants, including Mr Norman, and the Cross-Claimants in the Coyte proceedings shared common representation and did not conduct their case in a manner that distinguished between any separate case against Mr Norman and the case against other parties, at a factual level, although they advanced a short, and successful, submission that it had not been established that Mr Norman personally agreed to acquire any share in the Mutual Fund from the Coyte parties. It seems to me that there is little prospect that Mr Norman would have incurred separate costs that could properly be attributed to the defence of the claim against him, as distinct from the Norman parties' conduct of the Coyte proceedings generally.
The Coyte parties respond that the Norman parties' approach would lead to injustice, where the two proceedings were, in effect, one. I do not accept that submission. The Scorer proceedings involved different parties and different issues, and the Coyte proceedings involved both a substantive claim brought by Mr Coyte and Blooms and a larger Cross-Claim brought by CCPL and CCS which overlapped but were not identical, as is apparent not least from the fact that the Coyte parties and the Norman parties each failed, in substance, in their claims against the other. The Coyte parties also submit that the orders sought by the Norman parties in the Coyte proceedings do not take into account the fact that the Coyte parties were successful in relation to the cause, that is defending the larger and more complex Cross-Claim. I also do not accept that submission, where those orders take that matter into account by providing that there will be an assessment of the costs of each of the claim and the Cross-Claim in the Coyte proceedings.
For these reasons, I should not make the order sought by the Coyte parties in respect of the costs of the Coyte proceedings, which would not properly reflect their failure in their claim in those proceedings or that they put the Norman parties to the costs of their successful defence of that claim. The alternative to such an order, given the manner in which the parties approached the costs application, is the order for which the Norman parties contend, that Mr Coyte and Blooms pay the costs of the claim and CCPL and CCS pay the costs of the Cross-Claim respectively in the Coyte proceedings, as agreed or as assessed.
I should add, for completeness, that the Coyte parties did not seek a result that there be no order as to the costs of the Coyte proceedings, which would have avoided the further costs involved in the assessment of the costs of the claim and Cross-Claim, but would also have involved their giving up any amount by which their costs recovered from CCPL and CCS in respect of the Cross-Claim may exceed their costs payable to the Norman parties in respect of the primary claim. It does not seem to me that I can make such an order, where it was not sought and no submissions were made about it. I also do not consider that I can make any order that, for example, the Norman parties pay a proportion of the Coyte parties' costs, to take account of the greater time spent on the Norman parties' unsuccessful Cross-Claim, where the parties did not lead evidence or make submissions that addressed that possibility. In the result, the parties' approach may lead to their incurring further costs in respect of a complex assessment.

The Coyte parties' reliance on a "Calderbank" offer

The Coyte parties seek costs on an indemnity basis after 12 February 2016 relying on an offer stated to have been made in accordance with the principle in Calderbank v Calderbank [1975] 3 All ER 333. I deal with that matter here, although it relates both to the Coyte proceedings and the Scorer proceedings. The Coyte parties rely on an email dated 12 February 2016 from their solicitor to the solicitor for the Norman parties, which stated that: "Our clients consider that notwithstanding their further evidence, your clients are unable to establish many of the factual matters that they are required to prove in support of their arguments. The evidence will be considered by the Court to be weak, especially when considered in light of the documentary evidence, on which our clients rely. Having said that - and as was foreshadowed at the unsuccessful mediation in 2015 - our clients consider it in the best interests of all parties to the Proceedings that they be resolved in a commercial manner. Accordingly, our clients offer to discontinue their proceedings against your clients if your clients do the same in their proceeding and cross-claim. Such discontinuance, our clients' offer, should take place on the basis that each party pays his/its costs of the Proceedings. In effect, this is a walk-away proposal, the acceptance of which our clients consider is wise and sound. This offer is made in accordance with the principles set out, amongst others, in Calderbank v Calderbank [1975] 3 All ER 333. In making this offer, our clients do not make any admissions or concessions. If this offer is not accepted, our clients reserve their rights to tender this letter to the Court following judgment in relation to the award of costs."
The Coyte parties also referred in submissions to a letter dated 13 September 2015; however, it is apparent from that letter and its contents that it was sent on 13 September 2016, after the delivery of the earlier judgment, and it therefore does not assist in a claim to costs incurred prior to that judgment.
The Court must determine the question whether to order indemnity costs by reason of a Calderbank offer in accordance with well-established principles. Mr Afshar, who appears for the Coyte parties, draws attention to the summary of the principles applicable to a Calderbank offer by Ward J (as her Honour then was) in Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816 at [9]-[15], including the following: The rationale for the principles applied in relation to Calderbank offers was outlined in Commonwealth v Gretton [above] by Beazley JA, her Honour noting (at [41]) that the public policy considerations underpinning the making of favourable costs orders where a Calderbank offer has been made (and not accepted) are the encouragement of settlement of disputes as soon as possible and the discouragement of wasteful and unreasonable behaviour by litigants. The Court of Appeal in Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 recently reiterated the public policy objectives of special costs orders in the context of offers of compromise. Basten JA (with whom McColl and Campbell JJA agreed) referred at [6] to the objects underlying the formal offer of compromise procedures under the then court rules that were identified in Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 as including: 1. To encourage the saving of private costs and the avoidance of the inherent risks, delays and uncertainties of litigation by promoting early offers of compromise by defendants which amount to a realistic assessment of the plaintiff's real claim which can be placed before its opponent without risk that its "bottom line" will be revealed to the court; 2. To save the public costs which are necessarily incurred in litigation which events demonstrate to have been unnecessary, having regard to an earlier (and, as found, reasonable) offer of compromise made by a plaintiff to a defendant; and 3. To indemnify the plaintiff who has made the offer of compromise, later found to have been reasonable, against the costs thereafter incurred. This is deemed appropriate because, from the time of the rejection or deemed rejection of the compromise offer, notionally the real cause and occasion of the litigation is the attitude adopted by the defendant which has rejected the compromise. In such circumstances, that party should ordinarily bear the costs of litigation. The onus is on the party seeking to rely on a Calderbank offer (in this case, the defendants) to satisfy the court that it should exercise the costs discretion in its favour (Evans Shire Council v Richardson (No 2) [2006] NSWCA 61). An indemnity costs order will not automatically follow from the fact that a genuine offer of compromise more favourable than the final judgment was made nor is there any presumption to that effect (Cat Media Pty Ltd v Allianz Australia Insurance Ltd [2006] NSWSC 790; Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461). What must be considered is the reasonableness of the offeree's rejection or non-acceptance of the offer, having regard to the relevant circumstances at the time that the offer fell to be considered (ie, here, as at September 2006) (citing MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd [1996] 70 FCR 236 per Lindgren J). The question is whether, in all the circumstances, the failure to accept the offer "warrants departure from the ordinary rule as to costs" (SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 per Giles JA at [37]). Counsel for the defendants (Mr Stitt) submits that, insofar as the Court is to have regard to the particular circumstances of the case, this includes the evidence advanced, the conduct of the parties and the ultimate result (referring to Knight v Clifton [1971] Ch 700; Hally v Dennis (1955) 95 CLR 661 at 664) and that relevant conduct of the parties to be taken into account may include not only conduct in the course of the proceedings (Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137) but also conduct leading up to commencement of the proceedings (Peters v Peters (1907) 7 SR (NSW) 398 at 399). Save where there is a special costs order by reference to the procedure provided for under the Rules or in accordance with the principles in Calderbank v Calderbank [above], it has been said that a court should depart from the general rule (and award indemnity costs only where the conduct of the party against whom the order is sought is "plainly unreasonable" (Sydney City Council v Geftlick [2006] NSWCA 280; Dunstan v Rickwood (No 2) [2007] NSWCA 266). In Leichhardt Municipal Council v Green [2004] NSWCA 341, Santow JA (at [57]) said that indemnity costs orders should be reserved for the most unreasonable actions by unsuccessful plaintiffs."
Mr Afshar also points to the identification of factors that are relevant to determining whether an offer was unreasonably rejected, by the Court of Appeal of the Supreme Court of Victoria in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) [2005] VSCA 298; (2005) 13 VR 435. In Re Alsafe Security Products Pty Ltd atf The Alsafe Trust (in liq) [2016] NSWSC 575 at [8], I summarised the principles applicable in determining the effect of a Calderbank offer as follows: "[T]he fact that a party ultimately achieves a worse result than he or she would have achieved if he or she had accepted a Calderbank offer does not itself establish that the other party should be awarded indemnity costs, unless it can be said that it was unreasonable for the first party not to accept that offer, so as to warrant a departure from the general rule as to costs: Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816 at [9]-[15]; Perisher Blue Pty Ltd v Nair-Smith (No 2) [2015] NSWCA 268 at [14], [16]. In Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 1229 at [26], Stevenson J observed that: 'If a Calderbank offer is made, but not accepted, the court's discretion to make a special order is enlivened. The court's discretion is an open one, but is commonly enlivened if (a) the party that made the offer achieves a better result than the amount offered, (b) the offer was a genuine offer of compromise, and (c) it was unreasonable of the offeree not to accept: for example Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 at [7]-[8].'"
The Coyte parties rely on the fact that the 12 February 2016 email identified the suggested weakness of the Norman parties' evidence, when considered in light of the documentary evidence, and that observation anticipated an issue which was ultimately significant in the determination of the proceedings. The Coyte parties also submit that the offer made in that email was real and genuine, in that it involved an offer to compromise claims exceeding $60,000 and other relief they had sought. In the event, however, it amounted to an offer to discontinue claims of the Coyte parties that ultimately failed, on condition that the Norman parties also discontinued claims which succeeded in one limited aspect, and without any substantive practical benefit arising from that limited success. The Coyte parties also submit that the prospects of the Norman parties' claims were then low, and could not improve given that Mr Norman's evidence had been served by the time their offer was made. Those prospects, of course, depended on whether Mr Norman's evidence of numerous conversations was accepted, which in the event it was not. The Coyte parties alternatively submit that the matters relied on to support an order for costs on an indemnity basis after 12 February 2016 would support an order that the Norman parties pay the Coyte parties' costs of the proceedings.
The Norman parties respond that it was not unreasonable for them not to accept that offer, where, inter alia, it did not distinguish the positions of the individual parties to the proceedings, including Mr Norman, Shartru, Mr Scorer and United Nominees, and that the result of the proceedings, to the extent that it can be compared to the terms of the offer, was no better for the Coyte parties than the terms of the offer, so that it cannot be said that the Coyte parties have achieved a better result. I accept that submission, where the Coyte parties ultimately failed in the claims that they had offered to discontinue in the 12 February 2016 email. The Norman parties also submit that it is relevant that no offer of payment was made in that offer, although significantly larger claims were made in the Cross-Claim by the Norman parties than in the claims by the Coyte parties. It does not seem to me that that matter has particular significance, where the nominal size of the Norman parties' Cross-Claim would need to be discounted by its prospects of success.
In the event, the Coyte parties (as a group) and the Norman parties (as a group) are substantially worse off because the offer made by the Coyte parties was not accepted, since they have incurred substantial costs in the conduct of a lengthy hearing in which each of them failed in substance in the claims brought against the other. However, it does not seem to me that it can be said that the Coyte parties have secured a better result, in the proceedings, than that offered in that letter, where they had offered to discontinue claims that have failed. On balance, and with some hesitation, it does not seem to me that I can conclude that it was unreasonable for the Norman parties not to accept that offer, where it involved a somewhat complex analysis of the position of different entities under Mr Norman's control who were the Defendants and Cross-Claimants in the Coyte proceedings, the offer did not provide information as to the costs of the Coyte parties that would be relevant to an assessment of its value, and the offer required the Norman parties to abandon apparently meritorious (and ultimately successful) claims against United Nominees in order to resolve the proceedings as against the Coyte parties.
The Coyte parties also refer, implicitly as a criticism of the Norman parties, to the fact that these proceedings were transferred from the District Court of New South Wales to this Court on the application of the Norman parties. That matter may have been relevant, had the question been whether costs should be ordered in favour of a successful party in the proceedings which had recovered an amount less than the jurisdictional limit of this Court. It seems to me that the matter has limited relevance where both parties failed. There is also force in the Norman parties' submission that the range of matters raised in the proceedings, including breach of trust and claims under the Corporations Act and the Australian Securities and Investments Commission Act 2001 (Cth), meant that the proceedings, if brought, were properly determined in this Court. The fundamental difficulty in these proceedings is not that they were transferred to this Court, but that a multitude of complex claims were brought, that were, in the event, disproportionate to the amounts in issue and the ultimate outcome.

Summary of orders and costs in the Coyte proceedings

I have held above that I should not make the orders sought by the Coyte parties, and that costs should follow the event in respect of the claim and Cross-Claim in the Coyte proceedings. I have not accepted the Coyte parties' submission that a costs order should be made in their favour on an indemnity basis from 12 February 2016. Accordingly, I make the following orders in proceedings 2013/43716, the Coyte proceedings:
The Statement of Claim is dismissed.
The Cross-Claim is dismissed.
The Plaintiffs pay the Defendants' costs of the claim brought by the Plaintiffs against the Defendants, as agreed or as assessed.
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.

Orders and costs in the Scorer proceedings

I have set out the claims and result in the Scorer proceedings above. The Norman parties submit that the Court should make a declaration in the Scorer Proceedings that Mr Coyte breached his duty of care and diligence under s 180 of the Corporations Act 2001 (Cth) by causing certain payments to be made to Mr Scorer. I held, at paragraph 188 of the earlier judgment that: "On balance, it seems to me that the manner in which the payments were made amounted to a breach of Mr Coyte's duty of care and diligence under s 180 of the Corporations Act, at least in the sense that relatively large payments were made without bringing the matter before the board of CCN or CCS for a decision or at least reaching an informal consensus among the directors as to the payments; in the case of the First Payment, contrary to Mr Norman's expressed position that accrued business expenses of CCN should be reimbursed prior to such a payment; and, in the case of the Second Payment, in a manner that would prevent Mr Norman from seeking to object to it, even if his doing would have involved his resiling from a previously agreed position." I also held that CCN and CCS had not established that they suffered any loss by reason of the alleged contravention or the payments to Mr Scorer.
There is authority, although the parties did not address the relevant case law, that the Court should not generally make a declaration, even if it has jurisdiction to do so, unless it is satisfied both that the declaration sought is appropriate and that it has sufficient practical utility or where it would merely be prefatory to other relief: Neeta (Epping) Pty Ltd v Phillips [1974] HCA 18; (1974) 131 CLR 286; Attorney-General (NSW); Ex rel Corporate Affairs v Australian Softwood Forests Pty Ltd [1979] 2 NSWLR 73 at 76 per Hutley JA (with whom Reynolds and Samuels JJA agreed); OXS Pty Ltd v Sydney Harbour Foreshore Authority and Minister for Planning and Environment [2014] NSWSC 1284 at [6], aff'd OXS Pty Ltd v Sydney Harbour Foreshore Authority [2016] NSWCA 120; PW Young, C Croft and ML Smith, On Equity, (2009, Lawbook Co) at 1084. In E & J Gallo Winery v Lion Nathan Australia Pty Ltd (No 2) [2009] FCAFC 47, where the appellants sought a declaration as to the infringement of a trade mark, the Full Court of the Federal Court of Australia held that there was no utility in that declaration where it would merely reflect a corresponding finding in its judgment. It seems to me that the findings that I have made are sufficiently set out in the earlier judgment and that there would be no utility in making a declaration that would have no practical effect, and which would be merely prefatory to CCN's and CCS's unsuccessful claim in damages against Mr Coyte in the Scorer proceedings.
The Norman parties also point out that, in my earlier judgment, I had reserved to CCN and CCS an opportunity to be heard as to the amount of an order for compensation as against United Nominees. It has since emerged that United Nominees was deregistered on 12 September 2016, shortly after I delivered judgment, and no orders can now be made against it where it has no legal existence. Although the Norman parties concede that matter, they nonetheless seek a declaration that United Nominees held a specified sum on trust. It seems to me that such a declaration cannot presently be made, where the party that it would potentially bind has no legal existence. Alternatively, the Norman parties submit, and I accept, that it would be appropriate to grant liberty to the Norman parties to apply, within 28 days, for any further order in respect of United Nominees. Their ability to obtain such an order would, obviously, depend upon an order for reinstatement of United Nominees, which would likely only be made if they can establish that entity's solvency or if a liquidator is appointed to that company.
I will also deal with the submissions as to costs made in the Scorer proceedings, although it would not be possible to make orders for costs against United Nominees, which did not appear in the proceedings, for the reason noted above. I do not accept the Coyte parties' submission that the Norman parties should pay their costs of the proceedings, and on an indemnity basis from 12 February 2016, for the reasons set out above. The Norman parties' primary submission is that Mr Coyte should pay their costs of the Scorer proceedings, since they had what they contend was a "limited success" in establishing a breach of duty against Mr Coyte. I do not accept that submission, where that success was of no practical significance, since the Norman parties failed to establish any claim for loss against Mr Coyte. Alternatively, the Norman parties submit that CCN, CCS and Mr Coyte should each pay their own costs of the Scorer proceedings, and that there should be no orders as to the costs of Mr and Mrs Scorer, against whom the proceedings were not maintained. I accept that such an order is properly made.
I make the following orders in proceedings 2013/252885, the Scorer proceedings:
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.
Liberty to apply with respect to the claims against the Third Defendant, United Nominees Pty Limited, within 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2016

tion 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)

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