In the matter of HCafe Chatswood Pty Ltd [2018] NSWSC 362

In the matter of HCafe Chatswood Pty Ltd [2018] NSWSC 362

No party established an entitlement to costs because making a costs order would require findings on the merits that could not properly be made without a hearing. The Plaintiffs had not discontinued or abandoned their claims in the relevant sense; rather, deterioration in the Company's financial position and sale of its business were supervening events that made other relief no longer viable while the winding up relief was pursued. Accordingly, there should be no order as to costs of the proceedings between the parties, preserving any previous costs orders.

Jurisdiction
Australia
Judgment Date
06 March 2018
Procedural Posture
Corporations Proceeding Concerning Oppression and Winding Up / Costs Determination After Parties Agreed to Winding Up and No Hearing on the Merits Occurred
Outcome
No order as to the costs of the proceedings between the parties, other than any previous costs orders which are preserved.
Legal Topics
['party/party Costs' 'costs Where No Hearing on the Merits' 'winding Up' 'oppression' 'discontinuance or Abandonment' 'supervening Event']
['corporations Law' 'civil Procedure' 'costs'] ['party/party Costs' 'costs Where No Hearing on the Merits' 'winding Up' 'oppression' 'discontinuance or Abandonment' 'supervening Event']

Case Brief

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Procedural Posture

Corporations Proceeding Concerning Oppression and Winding Up / Costs Determination After Parties Agreed to Winding Up and No Hearing on the Merits Occurred

Legal Issues

  1. 1 ['Whether the Plaintiffs should receive their costs of the proceedings where the substantive dispute was not heard on the merits.' 'Whether Ms Sun and Kee Mew Family Pty Ltd should receive costs on the basis that claims against them were abandoned, discontinued or dismissed.' "Whether the deterioration of the Company's financial position and sale of its business was a supervening event affecting the appropriate costs order." 'Whether default costs consequences under Uniform Civil Procedure Rules 2005 (NSW) r 42.19(2) applied.']

Ratio Decidendi

No party established an entitlement to costs because making a costs order would require findings on the merits that could not properly be made without a hearing. The Plaintiffs had not discontinued or abandoned their claims in the relevant sense; rather, deterioration in the Company's financial position and sale of its business were supervening events that made other relief no longer viable while the winding up relief was pursued. Accordingly, there should be no order as to costs of the proceedings between the parties, preserving any previous costs orders.

Court Disposition

No order as to the costs of the proceedings between the parties, other than any previous costs orders which are preserved.

Orders

  • ['HCafe Chatswood Pty Ltd be wound up.' 'Mr Natkunarajah be appointed as liquidator of HCafe Chatswood Pty Ltd.' 'The strict requirement of publication under r 5.6(3) of the Supreme Court (Corporation) Rules 1999 (NSW) be dispensed with.' 'There be no order as to the costs of the proceedings, other than any orders...