Vouris (liquidator) v Johnson, in the matter of Zivaust Pty Ltd (deed administrator appointed) [2024] FCA 150

Vouris (liquidator) v Johnson, in the matter of Zivaust Pty Ltd (deed administrator appointed) [2024] FCA 150

No costs order was made because the proper construction of the DOCA and the treatment of the Woodside Shares had not been determined by the Court and there had been no hearing on that issue. It was not appropriate to try a hypothetical action to assess success or the merits of Ms Lewinsmith's earlier position. The Court was not satisfied that either Ms Lewinsmith's conduct or Ms Johnson's filing of the Interlocutory Application was so unreasonable as to justify an adverse costs order, including because the Deed Administrator had already communicated her view in the 14 June 2023 Letter and the later Determination confirmed that view.

Jurisdiction
Australia
Judgment Date
28 February 2024
Procedural Posture
Commercial and Corporations; Corporations and Corporate Insolvency / Costs Determination on the Papers in Relation to the First Defendant's Interlocutory Application Filed on 28 September 2023
Outcome
No order as to costs for the First Defendant's interlocutory application.
Legal Topics
['costs of Interlocutory Application' 'indemnity Costs' 'no Final Determination on Merits' 'deed of Company Arrangement' 'external Administration' 'insolvency Practice Schedule Directions']
['costs' 'corporations' 'corporate Insolvency'] ['costs of Interlocutory Application' 'indemnity Costs' 'no Final Determination on Merits' 'deed of Company Arrangement' 'external Administration' 'insolvency Practice Schedule Directions']

Case Brief

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Procedural Posture

Commercial and Corporations; Corporations and Corporate Insolvency / Costs Determination on the Papers in Relation to the First Defendant's Interlocutory Application Filed on 28 September 2023

Legal Issues

  1. 1 ["Whether Ms Lewinsmith should pay Ms Johnson's costs of the Interlocutory Application on an indemnity basis." "Whether Ms Johnson should pay Ms Lewinsmith's costs of and incidental to the Interlocutory Application on an indemnity basis or alternatively on a standard basis." "Whether any order should be made requiring Ms Johnson to recover from Ms Lewinsmith an amount equal to amounts applied from the Deed Fund for the Plaintiffs' legal costs and the Deed Administrator's remuneration incurred in respect of the Interlocutory Application." 'Whether either party acted so unreasonably in the circumstances of a resolved proceeding, where the proper construction of the DOCA was not determined by the Court, as to warrant an adverse costs order.']

Ratio Decidendi

No costs order was made because the proper construction of the DOCA and the treatment of the Woodside Shares had not been determined by the Court and there had been no hearing on that issue. It was not appropriate to try a hypothetical action to assess success or the merits of Ms Lewinsmith's earlier position. The Court was not satisfied that either Ms Lewinsmith's conduct or Ms Johnson's filing of the Interlocutory Application was so unreasonable as to justify an adverse costs order, including because the Deed Administrator had already communicated her view in the 14 June 2023 Letter and the later Determination confirmed that view.

Court Disposition

No order as to costs for the First Defendant's interlocutory application.

Orders

  • ["There be no order as to the costs of the First Defendant's interlocutory application filed on 28 September 2023."]