Hawes & anor v Dean & ors (Costs) [2013] NSWSC 1246

Hawes & anor v Dean & ors (Costs) [2013] NSWSC 1246

Despite the lack of mutuality in the strict legal sense, the underlying beneficial interests were sufficiently identical, and the liabilities sufficiently connected, that it was inequitable for one party to enforce its judgment without set-off. The plaintiffs' nominee was appointed liquidator in line with standard practice. The failure to lodge ASIC notice for winding up was an irregularity but not a cause of injustice, so the winding up proceeded. Costs were ultimately left to lie where they fell, each party bearing its own, due to the mixed outcome and the joint venture context.

Jurisdiction
Australia
Judgment Date
03 September 2013
Procedural Posture
Corporations Proceedings (equity Division) / Final Judgment on Orders and Costs
Outcome
Orders made as to winding-up, judgments for and against parties on claims and cross-claims, set-off directed between certain monetary judgments, no order as to costs
Legal Topics
['equitable Set Off' 'winding Up of Company' 'costs' 'beneficial Interest' 'cross Claims']
['equity' 'corporations Law'] ['equitable Set Off' 'winding Up of Company' 'costs' 'beneficial Interest' 'cross Claims']

Case Brief

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Procedural Posture

Corporations Proceedings (equity Division) / Final Judgment on Orders and Costs

Legal Issues

  1. 1 ['Whether equitable set-off applies where parties are not identical' 'Whether to appoint liquidator nominated by the plaintiffs' 'Whether to order winding up given irregularity in ASIC notice' 'How costs should be apportioned where mixed success on claims and cross-claims']

Ratio Decidendi

Despite the lack of mutuality in the strict legal sense, the underlying beneficial interests were sufficiently identical, and the liabilities sufficiently connected, that it was inequitable for one party to enforce its judgment without set-off. The plaintiffs' nominee was appointed liquidator in line with standard practice. The failure to lodge ASIC notice for winding up was an irregularity but not a cause of injustice, so the winding up proceeded. Costs were ultimately left to lie where they fell, each party bearing its own, due to the mixed outcome and the joint venture context.

Court Disposition

Orders made as to winding-up, judgments for and against parties on claims and cross-claims, set-off directed between certain monetary judgments, no order as to costs

Orders

  • ['Third defendant Hawden Property Group Pty Limited to be wound up; Mr John Vouris of Lawler Partners appointed liquidator' 'Fourth defendant Hawden Constructions Pty Limited to be wound up; Mr John Vouris of Lawler Partners appointed liquidator' 'First cross-defendant David Richard Hawes and second cross-defendant...