In the matter of Hydrodec Group Plc (No 2) [2021] NSWSC 1491

In the matter of Hydrodec Group Plc (No 2) [2021] NSWSC 1491

Because the joint monitors were the foreign representatives and proper plaintiffs, had supported and consented to the recognition proceedings, and were unsuccessful with the Company, there was no principled reason to depart from the ordinary approach that costs follow the event; they and the Company were jointly and severally liable for SOR's costs of the recognition proceedings. SOR's recognition costs, insofar as payable by the Company, and its winding up costs were properly referable to the winding up and reimbursable under s 466 with priority under s 556(1)(b). Gross sum costs orders were refused because SOR's evidence did not provide a fair, logical and reasonable basis for...

Jurisdiction
Australia
Judgment Date
19 November 2021
Procedural Posture
Costs in Corporations and Insolvency Proceedings / Determination on the Papers of Costs Following Dismissal of Recognition Proceedings and Successful Winding Up Application
Outcome
Costs orders made in favour of Southern Oil Refining Pty Ltd; application for gross sum costs orders refused.
Legal Topics
['costs Following the Event' 'personal Costs Liability of Monitors' 'recognition of Foreign Main Proceeding' 'gross Sum Costs Order' 'priority and Reimbursement of Winding Up Costs']
['corporations' 'insolvency' 'cross Border Insolvency' 'civil Procedure' 'costs'] ['costs Following the Event' 'personal Costs Liability of Monitors' 'recognition of Foreign Main Proceeding' 'gross Sum Costs Order' 'priority and Reimbursement of Winding Up Costs']

Case Brief

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Procedural Posture

Costs in Corporations and Insolvency Proceedings / Determination on the Papers of Costs Following Dismissal of Recognition Proceedings and Successful Winding Up Application

Legal Issues

  1. 1 ["Whether the joint monitors appointed under the Insolvency Act 1986 (UK) should be jointly and severally liable with Hydrodec Group Plc for SOR's costs of the unsuccessful recognition proceedings." "Whether SOR's costs of the recognition proceedings, insofar as payable by Hydrodec Group Plc, should be reimbursed pursuant to s 466 and paid in the priority provided by s 556(1)(b) of the Corporations Act 2001 (Cth)." "Whether SOR's costs of the winding up proceedings should be reimbursed pursuant to s 466 and paid in the priority provided by s 556(1)(b) of the Corporations Act 2001 (Cth)." 'Whether the Court should make gross sum costs orders under s 98(4)(c) of the Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

Because the joint monitors were the foreign representatives and proper plaintiffs, had supported and consented to the recognition proceedings, and were unsuccessful with the Company, there was no principled reason to depart from the ordinary approach that costs follow the event; they and the Company were jointly and severally liable for SOR's costs of the recognition proceedings. SOR's recognition costs, insofar as payable by the Company, and its winding up costs were properly referable to the winding up and reimbursable under s 466 with priority under s 556(1)(b). Gross sum costs orders were refused because SOR's evidence did not provide a fair, logical and reasonable basis for...

Court Disposition

Costs orders made in favour of Southern Oil Refining Pty Ltd; application for gross sum costs orders refused.

Orders

  • ["In proceeding 2021/155167, order that the plaintiffs pay the second defendant's costs of the proceedings, as agreed or assessed." "In proceeding 2021/155167, insofar as the costs order applies to the first plaintiff, order pursuant to s 466 of the Corporations Act 2001 (Cth) that the liquidators of the first...