Fletcher and Barnet, in the matter of Octaviar Ltd (Receivers and Managers Appointed) (In Liq) and Octaviar Administration Pty Ltd (In Liq) (No 4) [2012] FCA 344

Fletcher and Barnet, in the matter of Octaviar Ltd (Receivers and Managers Appointed) (In Liq) and Octaviar Administration Pty Ltd (In Liq) (No 4) [2012] FCA 344

Fortress was not entitled to costs of the first proceeding because it did not participate in that proceeding. However, Fortress had sufficient interest in the second proceeding, its intervention provided the contradictor without which the primary judge's orders would have stood, and the Liquidators were shown to have been unsuccessful before the primary judge after the Full Court set aside those orders. In all the circumstances, the appropriate order was that the Liquidators pay Fortress' costs of the second proceeding before the primary judge only, with those costs to be costs in the liquidation of Octaviar Limited.

Jurisdiction
Australia
Judgment Date
04 April 2012
Procedural Posture
Costs Application in Proceedings Under S 477(2 B) of the Corporations Act 2001 (cth) / Heard on the Papers After Remitter, Special Leave Refusal, and Discontinuance of Both Proceedings
Outcome
Fortress' application for costs was allowed in part in NSD 255 of 2011 and otherwise rejected; Fortress' application for costs in NSD 149 of 2011 was rejected.
Legal Topics
["liquidators' Approval Under S 477(2 B)" 'non Party Costs Orders' 'leave to Be Heard Under Rule 2.13 of the Federal Court (corporations) Rules 2000' 'discontinuance' 'costs in Liquidation']
['corporations Law' 'insolvency' 'civil Procedure' 'costs'] ["liquidators' Approval Under S 477(2 B)" 'non Party Costs Orders' 'leave to Be Heard Under Rule 2.13 of the Federal Court (corporations) Rules 2000' 'discontinuance' 'costs in Liquidation']

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Procedural Posture

Costs Application in Proceedings Under S 477(2 B) of the Corporations Act 2001 (cth) / Heard on the Papers After Remitter, Special Leave Refusal, and Discontinuance of Both Proceedings

Legal Issues

  1. 1 ['Whether Fortress, as a non-party granted leave to be heard, should receive costs of the first proceeding and the second proceeding.' 'Whether exceptional circumstances or unreasonable conduct justified a costs order in favour of a non-party.' 'Whether the discontinuance of the proceedings after remitter warranted costs where there was no further hearing on the merits.']

Ratio Decidendi

Fortress was not entitled to costs of the first proceeding because it did not participate in that proceeding. However, Fortress had sufficient interest in the second proceeding, its intervention provided the contradictor without which the primary judge's orders would have stood, and the Liquidators were shown to have been unsuccessful before the primary judge after the Full Court set aside those orders. In all the circumstances, the appropriate order was that the Liquidators pay Fortress' costs of the second proceeding before the primary judge only, with those costs to be costs in the liquidation of Octaviar Limited.

Court Disposition

Fortress' application for costs was allowed in part in NSD 255 of 2011 and otherwise rejected; Fortress' application for costs in NSD 149 of 2011 was rejected.

Orders

  • ['In NSD 255 of 2011, the first plaintiffs pay the costs of Fortress Credit Corporation (Australia) II Pty Limited of the proceeding before Stone J, with such costs to be costs in the liquidation of Octaviar Limited.' 'Except to the extent provided for by order 1 in NSD 255 of 2011, the application of Fortress...