Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation) – [Costs] [2022] NSWSC 665

Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation) – [Costs] [2022] NSWSC 665

Volkswagen was not entitled to indemnity costs because the offer did not result in a less advantageous outcome for the administrators/liquidators and was not unreasonably refused in the circumstances.

Parties
First Plaintiff / First Respondent to the Fourth Cross Claim: Volkswagen Financial Services Australia Pty Ltd; Second Plaintiff / Second Respondent to the Fourth Cross Claim: Ken Whittingham (Receiver and Manager of Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation)) and PJM Fleet Management Pty Ltd (Receivers and Managers Appointed)(In Liquidation); First Defendant / Third Respondent to the Fourth Cross Claim: Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation); Second Defendant / Fourth Respondent to the Fourth Cross Claim: PJM Fleet Management Pty Ltd (Receivers and Managers Appointed)(In Liquidation); Third Defendant / Fifth Respondent to the Fourth Cross Claim: Nissan Financial Services Australia Pty Ltd; Fourth Defendants / Sixth Respondents to the Fourth Cross Claim: Andrew Stewart Reed Hewitt and Matthew James Byrnes (Receivers and Managers of Atlas CTL Pty Ltd (in Liquidation)(Receivers and Managers Appointed)); Fifth Defendant / Seventh Respondent to the Fourth Cross Claim: BMW Australia Finance Limited; Sixth Defendants / Eighth Respondents to the Fourth Cross Claim: Bruno Secatore and Sam Kaso (Receivers and Managers of PJM Fleet Management Pty Ltd (Receivers and Managers Appointed)(In Liquidation)); Seventh Defendant / Applicants to the Fourth Cross Claim: Richard Albarran, Richard John Lawrence and John Vouris (Administrators and Liquidators of Atlas CTL Pty Ltd (In Liquidation) and PJM Fleet Management Pty Ltd (In Liquidation))
Jurisdiction
Australia
Judgment Date
25 May 2022
Procedural Posture
Equity Corporations List / Costs After Principal Judgment
Outcome
Costs orders made as set out in [11].
Legal Topics
Costs
Corporations Law Costs

Case Brief

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Parties

Volkswagen Financial Services Australia Pty Ltd

First Plaintiff / First Respondent to the Fourth Cross Claim

Ken Whittingham (Receiver and Manager of Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation)) and PJM Fleet Management Pty Ltd (Receivers and Managers Appointed)(In Liquidation)

Second Plaintiff / Second Respondent to the Fourth Cross Claim

Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation)

First Defendant / Third Respondent to the Fourth Cross Claim

PJM Fleet Management Pty Ltd (Receivers and Managers Appointed)(In Liquidation)

Second Defendant / Fourth Respondent to the Fourth Cross Claim

Nissan Financial Services Australia Pty Ltd

Third Defendant / Fifth Respondent to the Fourth Cross Claim

Andrew Stewart Reed Hewitt and Matthew James Byrnes (Receivers and Managers of Atlas CTL Pty Ltd (in Liquidation)(Receivers and Managers Appointed))

Fourth Defendants / Sixth Respondents to the Fourth Cross Claim

BMW Australia Finance Limited

Fifth Defendant / Seventh Respondent to the Fourth Cross Claim

Bruno Secatore and Sam Kaso (Receivers and Managers of PJM Fleet Management Pty Ltd (Receivers and Managers Appointed)(In Liquidation))

Sixth Defendants / Eighth Respondents to the Fourth Cross Claim

Richard Albarran, Richard John Lawrence and John Vouris (Administrators and Liquidators of Atlas CTL Pty Ltd (In Liquidation) and PJM Fleet Management Pty Ltd (In Liquidation))

Seventh Defendant / Applicants to the Fourth Cross Claim

Procedural Posture

Equity Corporations List / Costs After Principal Judgment

Legal Issues

  1. 1 Whether indemnity costs should be ordered against administrators/liquidators based on alleged Calderbank offer
  2. 2 Appropriate orders for costs between parties

Ratio Decidendi

Volkswagen was not entitled to indemnity costs because the offer did not result in a less advantageous outcome for the administrators/liquidators and was not unreasonably refused in the circumstances.

Court Disposition

Costs orders made as set out in [11].

Orders

  • The Amended Statement of Claim filed 11 March 2022 (fourth cross-claim) is dismissed.
  • Judgment for the seventh respondent to the fourth cross-claim against the applicants to the fourth cross-claim for $281,266.39.