Parbery v Toda [2007] NSWSC 1163

Parbery v Toda [2007] NSWSC 1163

The orders sought against the first, third, fourth and fifth defendants would not have been made as the defendants did not fail to allow inspection nor actively refuse access as required under s.431 of the Corporations Act 2001 (Cth), and the solicitor acted cooperatively. Therefore, the plaintiffs are to pay the costs of these defendants.

Parties
First Plaintiff: Stephen James Parbery (in his capacity as joint and several receiver and manager of McArthur Corporation Pty Ltd) (Receivers and Managers appointed); Second Plaintiff: Christopher Clarke Hill (in his capacity as joint and several receiver and manager of McArthur Corporation Pty Ltd) (Receivers and Managers appointed); Third Plaintiff: GE Commercial Corporation (Australia) Pty Ltd; First Defendant: Carlos Toda in his personal capacity and trading as Carlos Toda & Co Commercial Lawyers; Second Defendant: Ross Phillip Mottershead and Murray Roderick Godfrey trading as RMG Partners; Third Defendant: McArthur Corporation Pty Ltd (Receivers and Managers Appointed); Fourth Defendant: Jon Charles McArthur; Fifth Defendant: Richard Walter Fritsche; Sixth Defendant: Cromwell Corporation Limited; Seventh Defendant: Paclib Industrial Pty Limited
Jurisdiction
Australia
Judgment Date
16 October 2007
Procedural Posture
Civil / Judgment on Costs
Outcome
Plaintiffs to pay costs of first, third, fourth and fifth defendants. Such costs not to be claimed as secured by mortgage or as costs of receivership or to be recoverable from third defendant or guarantors.
Legal Topics
Costs, Receivership, Inspection of Books
Civil Procedure Corporations Law Costs Receivership Inspection of Books

Case Brief

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Parties

Stephen James Parbery (in his capacity as joint and several receiver and manager of McArthur Corporation Pty Ltd) (Receivers and Managers appointed)

First Plaintiff

Christopher Clarke Hill (in his capacity as joint and several receiver and manager of McArthur Corporation Pty Ltd) (Receivers and Managers appointed)

Second Plaintiff

GE Commercial Corporation (Australia) Pty Ltd

Third Plaintiff

Carlos Toda in his personal capacity and trading as Carlos Toda & Co Commercial Lawyers

First Defendant

Ross Phillip Mottershead and Murray Roderick Godfrey trading as RMG Partners

Second Defendant

McArthur Corporation Pty Ltd (Receivers and Managers Appointed)

Third Defendant

Jon Charles McArthur

Fourth Defendant

Richard Walter Fritsche

Fifth Defendant

Cromwell Corporation Limited

Sixth Defendant

Paclib Industrial Pty Limited

Seventh Defendant

Procedural Posture

Civil / Judgment on Costs

Legal Issues

  1. 1 Whether costs should be awarded where principal claims were unlikely to succeed and the matter was resolved consensually without determination on the merits
  2. 2 Whether orders under s.431 of the Corporations Act 2001 (Cth) could have been made against the first, third, fourth and fifth defendants

Ratio Decidendi

The orders sought against the first, third, fourth and fifth defendants would not have been made as the defendants did not fail to allow inspection nor actively refuse access as required under s.431 of the Corporations Act 2001 (Cth), and the solicitor acted cooperatively. Therefore, the plaintiffs are to pay the costs of these defendants.

Court Disposition

Plaintiffs to pay costs of first, third, fourth and fifth defendants. Such costs not to be claimed as secured by mortgage or as costs of receivership or to be recoverable from third defendant or guarantors.

Orders

  • Plaintiffs to pay costs of first, third, fourth and fifth defendants.
  • Such costs not to be claimed as secured by mortgage under which first and second plaintiffs were appointed receivers by third plaintiff or as costs of receivership or to be recoverable from third defendant or any persons who have guaranteed or secured the third defendant's liability to the third plaintiff.