Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Bicher Pty Ltd [2020] NSWSC 878. We will talk about two shareholders who sued each other to buy the other’s shares.

Two shareholders, P and D, sued each other; both trying to get the Court’s help to buy the other’s shares. Both failed: [2] P also sought to wind the Co up. That failed too, leaving the parties in their existing relationship: [3] Normally, as we know, costs follow the event – broadly, the “loser” in a piece of litigation pays (some of) the “winner’s” legal costs. But what was the appropriate cost order in this case, when no one got what they were after? D pressed for costs.

P’s position was each party should pay its own. D successfully resisted P’s wind up application because of a change in the facts after proceedings were commenced: [16] Without that change, P would have got its wind up. Further, while D’s cross-claim for a share sale was on a defensive basis [17] that XC failed on its own (lack of) merits, rather than the fact P’s claim that it was defending against failed: [18] D made a settlement offer but the outcome P enjoyed was no less favourable than what D offered, meaning there was no special costs order: [22], [24] No order as to costs was made, leaving both P and D to pay their own: [26]