In the matter of Heavy Plant Leasing Pty Ltd [2017] NSWSC 1835

In the matter of Heavy Plant Leasing Pty Ltd [2017] NSWSC 1835

Where defendants contest insolvency but later amend to admit it following service of evidence, the liquidators, having succeeded on the separate question, are entitled to costs of that question – with indemnity costs to apply from the date set for the separate question (27 March 2017) to 31 July 2017 under r 42.8 where notices to admit were disputed, and otherwise on the ordinary basis. Costs are jointly and severally payable by the defendants who put insolvency in issue.

Parties
First Plaintiff: Neil Robert Cussen and John Lethbridge Greig in their capacity as joint and several liquidators of Heavy Plant Leasing Pty Ltd (ACN 151 786 677); Second Plaintiff: Heavy Plant Leasing Pty Ltd (in liquidation) (ACN 151 786 677); Defendant (2016/77618, Third Defendant in 2016/77628, Second Defendant in 2016/77606): McDonnell Dowell Constructors (Aust) Pty Ltd (ACN 002 929 017); First Defendant (2016/77628): Kelly Teresa Henry; Second Defendant (2016/77628): Murray John Henry; First Defendant (2016/77606): Civil Pacific Services Group Pty Ltd (ACN 118 756 960); Defendant (2016/77602): Christine Mancer
Jurisdiction
Australia
Judgment Date
04 September 2017
Procedural Posture
Corporate Insolvency Proceedings (consolidated Proceedings for Determination of Company Insolvency) / Interlocutory Application for Costs Following Admission of Insolvency on a Preliminary Question
Outcome
Plaintiffs' application for costs granted in part—costs payable by specified defendants on ordinary and, for specified periods, indemnity basis following consolidation of proceedings.
Legal Topics
Costs Orders, Admissions and Notices to Admit Facts, Interlocutory Applications, Voidable Transactions
Corporate Insolvency Civil Procedure Costs Orders Admissions and Notices to Admit Facts Interlocutory Applications Voidable Transactions

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Parties

Neil Robert Cussen and John Lethbridge Greig in their capacity as joint and several liquidators of Heavy Plant Leasing Pty Ltd (ACN 151 786 677)

First Plaintiff

Heavy Plant Leasing Pty Ltd (in liquidation) (ACN 151 786 677)

Second Plaintiff

McDonnell Dowell Constructors (Aust) Pty Ltd (ACN 002 929 017)

Defendant (2016/77618, Third Defendant in 2016/77628, Second Defendant in 2016/77606)

Kelly Teresa Henry

First Defendant (2016/77628)

Murray John Henry

Second Defendant (2016/77628)

Civil Pacific Services Group Pty Ltd (ACN 118 756 960)

First Defendant (2016/77606)

Christine Mancer

Defendant (2016/77602)

Procedural Posture

Corporate Insolvency Proceedings (consolidated Proceedings for Determination of Company Insolvency) / Interlocutory Application for Costs Following Admission of Insolvency on a Preliminary Question

Legal Issues

  1. 1 Whether costs orders should be made following preliminary resolution of insolvency by admission
  2. 2 Whether costs should be awarded on an ordinary or indemnity basis under Uniform Civil Procedure Rules r 42.8
  3. 3 Against whom and on what basis costs should be apportioned among multiple defendants

Ratio Decidendi

Where defendants contest insolvency but later amend to admit it following service of evidence, the liquidators, having succeeded on the separate question, are entitled to costs of that question – with indemnity costs to apply from the date set for the separate question (27 March 2017) to 31 July 2017 under r 42.8 where notices to admit were disputed, and otherwise on the ordinary basis. Costs are jointly and severally payable by the defendants who put insolvency in issue.

Court Disposition

Plaintiffs' application for costs granted in part—costs payable by specified defendants on ordinary and, for specified periods, indemnity basis following consolidation of proceedings.

Orders

  • Proceedings 2016/77602, 2016/77628, 2016/77618 and 2016/00077606 consolidated.
  • McConnell Dowell Constructors (Australia) Pty Ltd, Kelly Teresa Henry, Murray John Henry, and Christine Mancer to pay plaintiffs' costs of the issue of insolvency, assessed on an ordinary basis until 27 March 2017, on an indemnity basis until 31 July 2017, then on an ordinary basis thereafter, jointly and severally.