Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Bicher Pty Ltd  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:  P also sought to wind the Co up. That failed too, leaving the parties in their existing relationship:  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:  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  that XC failed on its own (lack of) merits, rather than the fact P’s claim that it was defending against failed:  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: ,  No order as to costs was made, leaving both P and D to pay their own: