In the matter of Bias Boating Pty Limited (receivers and managers appointed) (in liquidation) [2019] NSWSC 47

In the matter of Bias Boating Pty Limited (receivers and managers appointed) (in liquidation) [2019] NSWSC 47

Because the Remaining Defendants, by not admitting the Company's insolvency despite uncontroverted evidence, put the Plaintiffs to proof of insolvency and thereby necessitated the hearing and costs, the Court held that each of those Defendants should pay the Plaintiffs the costs of and incidental to the determination of the separate question, as agreed or assessed.

Parties
First Plaintiff: Ian James Purchas in his capacity as liquidator of Bias Boating Pty Limited (receivers and managers appointed) (in liquidation); Second Plaintiff: Bias Boating Pty Limited (receivers and managers appointed) (in liquidation); First Defendant: Navico Australia Pty Limited; Second Defendant: Supercharge Batteries Pty Ltd; Third Defendant: R W Basham Pty Limited t/as RWB Marine; Eleventh Defendant: Commissioner of State Revenue (Qld); Thirteenth Defendant: Lalizas Marine Australia Pty Ltd t/as Oceansouth Pty Ltd; Sixteenth Defendant: Littler Investment Company Pty Ltd t/as Boating Lifestyle Adventure; Seventeenth Defendant: RFD (Australia) Pty Ltd
Jurisdiction
Australia
Judgment Date
06 February 2019
Procedural Posture
Corporations – Preference and Insolvency Proceedings / Costs Determination Following Determination of Separate Question
Outcome
The First, Second, Third, Eleventh, Thirteenth, Sixteenth and Seventeenth Defendants ordered to pay Plaintiffs' costs of the separate question as agreed or assessed; further directions and adjournments made; short minutes to be filed.
Legal Topics
Costs Follow the Event, Separate Question Procedure, Insolvency Determination, Non Admission Requiring Proof, Contribution Between Defendants
Corporations Insolvency Civil Procedure Costs Costs Follow the Event Separate Question Procedure Insolvency Determination Non Admission Requiring Proof +1 more

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 5 Authorities cited 15 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Ian James Purchas in his capacity as liquidator of Bias Boating Pty Limited (receivers and managers appointed) (in liquidation)

First Plaintiff

Bias Boating Pty Limited (receivers and managers appointed) (in liquidation)

Second Plaintiff

Navico Australia Pty Limited

First Defendant

Supercharge Batteries Pty Ltd

Second Defendant

R W Basham Pty Limited t/as RWB Marine

Third Defendant

Commissioner of State Revenue (Qld)

Eleventh Defendant

Lalizas Marine Australia Pty Ltd t/as Oceansouth Pty Ltd

Thirteenth Defendant

Littler Investment Company Pty Ltd t/as Boating Lifestyle Adventure

Sixteenth Defendant

RFD (Australia) Pty Ltd

Seventeenth Defendant

Procedural Posture

Corporations – Preference and Insolvency Proceedings / Costs Determination Following Determination of Separate Question

Legal Issues

  1. 1 Whether the First, Second, Third, Eleventh, Thirteenth, Sixteenth and Seventeenth Defendants should pay the costs of determination of a separate question on insolvency
  2. 2 Whether circumstances justified departure from the rule that costs follow the event
  3. 3 Appropriateness of separate question procedure for insolvency in preference cases

Ratio Decidendi

Because the Remaining Defendants, by not admitting the Company's insolvency despite uncontroverted evidence, put the Plaintiffs to proof of insolvency and thereby necessitated the hearing and costs, the Court held that each of those Defendants should pay the Plaintiffs the costs of and incidental to the determination of the separate question, as agreed or assessed.

Court Disposition

The First, Second, Third, Eleventh, Thirteenth, Sixteenth and Seventeenth Defendants ordered to pay Plaintiffs' costs of the separate question as agreed or assessed; further directions and adjournments made; short minutes to be filed.

Orders

  • The separate question of whether the Second Plaintiff was continuously insolvent between 25 February 2014 and 25 August 2014 be answered in the affirmative.
  • The First, Second, Third, Eleventh, Thirteenth, Sixteenth and Seventeenth Defendants pay the costs of and incidental to the hearing of the separate question as agreed or as assessed.