In the matter of Swan Services Pty Limited (in liquidation) [2017] NSWSC 692

In the matter of Swan Services Pty Limited (in liquidation) [2017] NSWSC 692

Ms Swan should pay the costs of her claim and the Cross-Claim regarding the 2013 Charge on an ordinary basis to 18 July 2016 and on an indemnity basis from 19 July 2016 to 6 December 2016. This includes a proportion of the costs for proof of Swan Services' insolvency in that Cross-Claim, but not proof for the associated Companies. The Cross-Claimants must pay Ms Swan's costs of defending the insolvent trading claim, excluding costs referable to proof of insolvency, as they succeeded on that discrete issue. Orders for indemnity costs for rejected offers were made only where technical requirements were met and rejection was unreasonable.

Jurisdiction
Australia
Judgment Date
02 June 2017
Procedural Posture
Equity Corporations List / Costs Ruling Following Main Judgment
Outcome
Costs orders apportioned by issue and basis; parties directed to agree, otherwise to file short minutes and submissions within 28 days.
Legal Topics
['costs' 'voidable Transactions' 'insolvent Trading' 'extension of Time for Registration of Security' 'calderbank Offers' 'offers of Compromise']
['corporations' 'civil Procedure'] ['costs' 'voidable Transactions' 'insolvent Trading' 'extension of Time for Registration of Security' 'calderbank Offers' 'offers of Compromise']

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Procedural Posture

Equity Corporations List / Costs Ruling Following Main Judgment

Legal Issues

  1. 1 ["Should Ms Swan pay the liquidator's costs of her claim and Cross-Claim regarding the 2013 Charge, and on what basis (ordinary or indemnity)?" 'Should Ms Swan pay costs of proof of insolvency?' "Should Cross-Claimants pay Ms Swan's costs for defending the insolvent trading claim, and should those costs exclude proof of insolvency?" 'Should the costs payable to Ms Swan be on an indemnity basis due to offers of compromise?']

Ratio Decidendi

Ms Swan should pay the costs of her claim and the Cross-Claim regarding the 2013 Charge on an ordinary basis to 18 July 2016 and on an indemnity basis from 19 July 2016 to 6 December 2016. This includes a proportion of the costs for proof of Swan Services' insolvency in that Cross-Claim, but not proof for the associated Companies. The Cross-Claimants must pay Ms Swan's costs of defending the insolvent trading claim, excluding costs referable to proof of insolvency, as they succeeded on that discrete issue. Orders for indemnity costs for rejected offers were made only where technical requirements were met and rejection was unreasonable.

Court Disposition

Costs orders apportioned by issue and basis; parties directed to agree, otherwise to file short minutes and submissions within 28 days.

Orders

  • ["Plaintiff to pay costs of her claim and Cross-Claim regarding the 2013 Charge to Cross-Claimants on ordinary basis to 18 July 2016 and indemnity basis from 19 July 2016 to 6 December 2016, including proportion of costs for proof of Swan Services' insolvency." "Cross-Claimants to pay Ms Swan's costs of defending...