Glazier v Aust Mens Health [1999] NSWSC 297

Glazier v Aust Mens Health [1999] NSWSC 297

Assuming the Court had power to order an administrator personally to pay costs, this was not a proper case because the first defendant's application was brought in good faith, was not shown to lack an arguable foundation, involved complex proceedings and difficult questions about trustee indemnity and administration, and no procedural challenge had been made to the competence of the motion. There was also no good ground to interfere with the statutory priority regime in s 556, particularly where the application was made and contested in good faith in a complex case involving a company with little or no assets.

Jurisdiction
Australia
Judgment Date
22 March 1999
Procedural Posture
Corporation/company Costs Motion in Equity Division / Plaintiff's Notice of Motion Seeking Costs of the First Defendant's Unsuccessful Motion
Outcome
Motion denied
Legal Topics
['personal Costs Order Against Administrator' 'costs of Unsuccessful Motion' 'deed of Company Arrangement' "creditors' Voluntary Winding Up" 'priorities Under S 556' "trustee's Right of Indemnity"]
['corporations Law' 'civil Procedure' 'insolvency' 'trusts'] ['personal Costs Order Against Administrator' 'costs of Unsuccessful Motion' 'deed of Company Arrangement' "creditors' Voluntary Winding Up" 'priorities Under S 556' "trustee's Right of Indemnity"]

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Procedural Posture

Corporation/company Costs Motion in Equity Division / Plaintiff's Notice of Motion Seeking Costs of the First Defendant's Unsuccessful Motion

Legal Issues

  1. 1 ["Whether Mr Star should personally pay the plaintiff's costs as respondent to the first defendant's unsuccessful Notice of Motion." 'Whether the costs payable in relation to the motion should be treated as deferred expenses for the purpose of s 556(1)(de) of the Corporations Law.' 'Whether the Court should interfere with the statutory order of priority in s 556.']

Ratio Decidendi

Assuming the Court had power to order an administrator personally to pay costs, this was not a proper case because the first defendant's application was brought in good faith, was not shown to lack an arguable foundation, involved complex proceedings and difficult questions about trustee indemnity and administration, and no procedural challenge had been made to the competence of the motion. There was also no good ground to interfere with the statutory priority regime in s 556, particularly where the application was made and contested in good faith in a complex case involving a company with little or no assets.

Court Disposition

Motion denied

Orders

  • ["The plaintiff's Notice of Motion filed on 24 January 1999 to which the first defendant is the respondent is denied." "The plaintiff as applicant is to pay the first defendant's costs of that motion."]