Background
Marcus John Warrick Betts, who commenced the case while a minor acting through a tutor, brought oppression and document-access claims concerning Formarcus Pty Ltd against the company, Dany Tjan and Glenda Michelle Green. Warwick John Betts was later joined as a fourth defendant.
The Court had struck out Mr Betts’ points of claim in August 2026 while allowing him to amend them. He later obtained leave to discontinue against Mr Tjan and Ms Green, without repleading claims against either. The remaining question was costs. Both defendants sought indemnity costs; Ms Green also sought to make the tutor personally liable.
The Court’s Holding
Black J ordered Mr Betts to pay Mr Tjan’s and Ms Green’s costs of the proceedings on the ordinary basis, as agreed or assessed. The ordinary starting point under UCPR r 42.19 applied because Mr Betts had discontinued the claims, and he had not established a reason to depart from it.
The Court rejected both indemnity-costs applications. Mr Tjan’s reliance on his former roles with the company and the continuation of the case did not establish unreasonable conduct by Mr Betts. Ms Green’s Calderbank offer—discontinuance on a no-costs basis—also did not justify indemnity costs because, absent a merits determination, it had not been shown that rejecting it was unreasonable. The Court declined to order costs personally against the tutor because no proper application had been made and he had not been afforded procedural fairness.
Key Takeaways
- A plaintiff who discontinues a claim will ordinarily pay the defendant’s incurred costs under UCPR r 42.19.
- Discontinuance after a pleading is struck out does not itself establish entitlement to indemnity costs.
- A Calderbank offer supports indemnity costs only where its rejection was unreasonable.
Why It Matters
The decision confirms that costs applications following discontinuance are not an occasion to decide the untried merits of the underlying dispute. A party seeking to avoid the usual costs consequence must identify a sound basis for doing so.
It also underscores that personal costs orders against a litigation tutor require an appropriate procedural application and an opportunity for the proposed respondent to be heard.