Commonwealth Bank of Australia v Fernandez (No 2) [2011] FCA 709

Commonwealth Bank of Australia v Fernandez (No 2) [2011] FCA 709

The successful plaintiffs (banks) are entitled to costs from the administrator, who in turn is to be indemnified out of the group companies' assets except to the extent of fifty percent of his own costs, reflecting that he acted properly overall but pursued issues beyond his remit. Investor groups, though heard, are not entitled to costs as their contribution was not necessary to the outcome.

Parties
First Plaintiff: Commonwealth Bank of Australia (ACN 123 123 124); Second Plaintiff: St George Bank, a division of Westpac Banking Corporation (ACN 007 457 141); First Defendant: Avitus Thomas Fernandez; Second Defendant: Willmott Forests Ltd (Receivers and Managers Appointed) (Administrators Appointed) (ACN 063 263 650); Third Defendant: Willmott Finance Ltd (Receivers and Managers Appointed) (Administrator Appointed) (ACN 081 274 811); Fourth Defendant: Willmott Forest Products Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 103 019 094); Fifth Defendant: Willmott Forests Investment Management Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 098 718 837); Sixth Defendant: Willmott Forest Nominees Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 085 588 772); Seventh Defendant: Willmott Energy Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 130 251 759); Eighth Defendant: Willmott Notes Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 134 963 036); Ninth Defendant: Willmott Subscriber Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 134 963 027); Tenth Defendant: Bioenergy Australia Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 096 335 901); Eleventh Defendant: Bioforest Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 096 335 876)
Jurisdiction
Australia
Judgment Date
22 June 2011
Procedural Posture
Costs Application Following Removal of Administrator / Post Removal, Costs Orders
Outcome
Costs orders made; costs awarded as set out in orders; confidentiality of PPB report maintained.
Legal Topics
Costs, Removal of Insolvency Practitioner, Entitlement to Costs, Indemnity for Administrator
Insolvency Civil Procedure Costs Removal of Insolvency Practitioner Entitlement to Costs Indemnity for Administrator

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Parties

Commonwealth Bank of Australia (ACN 123 123 124)

First Plaintiff

St George Bank, a division of Westpac Banking Corporation (ACN 007 457 141)

Second Plaintiff

Avitus Thomas Fernandez

First Defendant

Willmott Forests Ltd (Receivers and Managers Appointed) (Administrators Appointed) (ACN 063 263 650)

Second Defendant

Willmott Finance Ltd (Receivers and Managers Appointed) (Administrator Appointed) (ACN 081 274 811)

Third Defendant

Willmott Forest Products Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 103 019 094)

Fourth Defendant

Willmott Forests Investment Management Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 098 718 837)

Fifth Defendant

Willmott Forest Nominees Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 085 588 772)

Sixth Defendant

Willmott Energy Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 130 251 759)

Seventh Defendant

Willmott Notes Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 134 963 036)

Eighth Defendant

Willmott Subscriber Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 134 963 027)

Ninth Defendant

Bioenergy Australia Pty Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 096 335 901)

Tenth Defendant

Bioforest Ltd (Receivers & Managers Appointed) (Administrator Appointed) (ACN 096 335 876)

Eleventh Defendant

Procedural Posture

Costs Application Following Removal of Administrator / Post Removal, Costs Orders

Legal Issues

  1. 1 Which parties are entitled to costs; from whom costs should be recovered; whether administrator is entitled to indemnity; whether creditors' groups are entitled to costs; confidentiality of PPB report

Ratio Decidendi

The successful plaintiffs (banks) are entitled to costs from the administrator, who in turn is to be indemnified out of the group companies' assets except to the extent of fifty percent of his own costs, reflecting that he acted properly overall but pursued issues beyond his remit. Investor groups, though heard, are not entitled to costs as their contribution was not necessary to the outcome.

Court Disposition

Costs orders made; costs awarded as set out in orders; confidentiality of PPB report maintained.

Orders

  • The first defendant pay the plaintiffs' costs of and incidental to the proceeding.
  • The first defendant be indemnified out of the property of each of the second to eleventh defendants (inclusive) in respect of the costs referred to in Order 1.