Ford Motor Company of Australia Ltd v Tallevine Pty Ltd (In Liq) [2021] NSWSC 1192

Ford Motor Company of Australia Ltd v Tallevine Pty Ltd (In Liq) [2021] NSWSC 1192

Because the defendant was in a members voluntary winding up, no leave was required for the costs orders or execution; because the plaintiff's costs were not provable in the winding up and further assessment costs were unlikely to be recoverable, the justice of the case required a lump sum assessment. Applying a broad assessment to reasonable rates and work performed, allowing 75% of solicitors' costs with slight rounding down and full disbursements, the plaintiff's costs of the cross-claim were assessed at $295,000 and the $150,000 bank guarantee was ordered to be called upon.

Jurisdiction
Australia
Judgment Date
20 September 2021
Procedural Posture
Consequential Orders; Lump Sum Assessment of Costs / Notice of Motion Filed 17 August 2021 After Dismissal of the Cross Claim, Seeking Lump Sum Assessment of Costs and Call Up of a Bank Guarantee for Security for Costs
Outcome
Application granted; the cross-defendant's costs were assessed in a lump sum and the Registrar was directed to call upon the bank guarantee.
Legal Topics
['members Voluntary Winding Up' 'proceedings and Execution' 'leave Not Required' 'lump Sum Assessment of Costs' 'security for Costs' 'bank Guarantee']
['corporations' 'costs' 'civil Procedure'] ['members Voluntary Winding Up' 'proceedings and Execution' 'leave Not Required' 'lump Sum Assessment of Costs' 'security for Costs' 'bank Guarantee']

Case Brief

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Procedural Posture

Consequential Orders; Lump Sum Assessment of Costs / Notice of Motion Filed 17 August 2021 After Dismissal of the Cross Claim, Seeking Lump Sum Assessment of Costs and Call Up of a Bank Guarantee for Security for Costs

Legal Issues

  1. 1 ['Whether leave of the Court was required because the defendant was in a members voluntary winding up' "Whether the plaintiff's costs of defending the cross-claim should be assessed in a lump sum under s 98(4)(c) of the Civil Procedure Act 2005 (NSW)" "What amount should be allowed for the plaintiff's costs of the cross-claim" 'Whether the Registrar should call upon the bank guarantee provided as security for costs']

Ratio Decidendi

Because the defendant was in a members voluntary winding up, no leave was required for the costs orders or execution; because the plaintiff's costs were not provable in the winding up and further assessment costs were unlikely to be recoverable, the justice of the case required a lump sum assessment. Applying a broad assessment to reasonable rates and work performed, allowing 75% of solicitors' costs with slight rounding down and full disbursements, the plaintiff's costs of the cross-claim were assessed at $295,000 and the $150,000 bank guarantee was ordered to be called upon.

Court Disposition

Application granted; the cross-defendant's costs were assessed in a lump sum and the Registrar was directed to call upon the bank guarantee.

Orders

  • ['The costs of the cross-claim payable by the cross-claimant to the cross-defendant pursuant to the order made in that behalf on 31 May 2021 are assessed pursuant to s 98 of the Civil Procedure Act 2005 (NSW) in the lump sum of $295,000.' 'Direct that the Registrar call upon the bank guarantee from the National...