In the matter of Zamora Homes Pty Limited (in liquidation) and others [2019] NSWSC 1633

In the matter of Zamora Homes Pty Limited (in liquidation) and others [2019] NSWSC 1633

The Plaintiffs did not displace the starting point under UCPR r 42.20 for costs after dismissal because, after the liquidator commenced and pleaded the Fraser Panorama proceedings on 20 March 2019, the Plaintiffs pursued an application that would displace a liquidator already conducting those proceedings, and their delay in filing the Reply and the unresolved merits on a consent dismissal did not justify departing from the rule. However, their conduct did not rise to the level warranting indemnity costs, and the 24 April 2019 letter was too uncertain and complex, including a condition not within the Plaintiffs' control and affecting third parties, to found an offer of compromise or make...

Jurisdiction
Australia
Judgment Date
11 June 2019
Procedural Posture
Costs Determination in Equity Corporations List Proceedings Concerning an Application for Appointment of a Special Purpose Liquidator / After the Plaintiffs No Longer Pressed the Application and the Proceedings Were Dismissed by Consent
Outcome
The Plaintiffs were ordered to pay the liquidator's costs of the Fraser Panorama application from 21 March 2019 to 6 June 2019 on an ordinary basis; indemnity costs were refused; no order was made for costs since 7 June 2019 or for the costs hearing.
Legal Topics
['costs Following Dismissal of Proceedings' 'ordinary Costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'liquidation' 'special Purpose Liquidator']
['costs' 'corporations' 'civil Procedure'] ['costs Following Dismissal of Proceedings' 'ordinary Costs' 'indemnity Costs' 'offer of Compromise' 'calderbank Offer' 'liquidation' 'special Purpose Liquidator']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Determination in Equity Corporations List Proceedings Concerning an Application for Appointment of a Special Purpose Liquidator / After the Plaintiffs No Longer Pressed the Application and the Proceedings Were Dismissed by Consent

Legal Issues

  1. 1 ["Whether the Plaintiffs should pay the liquidator's costs following dismissal of the proceedings under r 42.20 of the Uniform Civil Procedure Rules 2005 (NSW)." "Whether the Plaintiffs displaced the starting point that they pay the Defendant's costs of the dismissed proceedings." "Whether the Plaintiffs' delay in filing a Reply warranted indemnity costs." "Whether the liquidator's solicitor's letter dated 24 April 2019 was capable of constituting an offer of compromise for the purposes of r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW)." 'Whether it was unreasonable for the Plaintiffs not to accept the 24 April 2019 offer for the purposes of Calderbank principles.' 'What order should be made as to the costs of the costs argument.']

Ratio Decidendi

The Plaintiffs did not displace the starting point under UCPR r 42.20 for costs after dismissal because, after the liquidator commenced and pleaded the Fraser Panorama proceedings on 20 March 2019, the Plaintiffs pursued an application that would displace a liquidator already conducting those proceedings, and their delay in filing the Reply and the unresolved merits on a consent dismissal did not justify departing from the rule. However, their conduct did not rise to the level warranting indemnity costs, and the 24 April 2019 letter was too uncertain and complex, including a condition not within the Plaintiffs' control and affecting third parties, to found an offer of compromise or make...

Court Disposition

The Plaintiffs were ordered to pay the liquidator's costs of the Fraser Panorama application from 21 March 2019 to 6 June 2019 on an ordinary basis; indemnity costs were refused; no order was made for costs since 7 June 2019 or for the costs hearing.

Orders

  • ["Order that the liquidator's costs up to and including 20 March 2019, in respect of the Fraser Panorama matter, and excluding all costs that are the subject of previous costs orders, be the liquidator's costs in the winding up." "The Plaintiffs pay the liquidator's costs of the application concerning the Fraser...