68 Bathurst Street Pty Ltd & Ors v NV Legal Pty Ltd & Ors [2010] NSWSC 292

68 Bathurst Street Pty Ltd & Ors v NV Legal Pty Ltd & Ors [2010] NSWSC 292

The Court accepted the evidence of Mr Moodie and Mr Streeter, supported by contemporaneous documents and commercial probabilities, that the 8 July 2008 costs agreement was subject to oral conditions that NV Legal Pty Ltd's costs would not be payable unless Mr Moodie was appointed official liquidator of the First to Seventh Plaintiffs and, as such, realised sufficient assets to pay NV's fees. Because neither condition was fulfilled, Mr Moodie was not liable to NV Legal Pty Ltd and the First to Seventh Plaintiffs could not be liable as his principals.

Jurisdiction
Australia
Judgment Date
25 March 2010
Procedural Posture
Equity Division, Corporations List Proceedings Concerning Provisional Liquidation Costs / Ex Tempore Judgment
Outcome
Declaration made that the Plaintiffs were not liable to pay the solicitors' costs; costs orders made against the First Defendant and balance of the Summons dismissed.
Legal Topics
['provisional Liquidation' 'costs Agreement' 'conditional Retainer' "solicitors' Costs"]
['corporations' 'costs'] ['provisional Liquidation' 'costs Agreement' 'conditional Retainer' "solicitors' Costs"]

Case Brief

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Procedural Posture

Equity Division, Corporations List Proceedings Concerning Provisional Liquidation Costs / Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether the costs agreement between the provisional liquidator and NV Legal Pty Ltd was subject to oral conditions that payment of NV's costs was conditional upon Mr Moodie being appointed official liquidator of the First to Seventh Plaintiffs and recovering sufficient assets in those liquidations." 'If some other condition was agreed, what its terms were.' 'If the costs agreement was subject to any condition, whether that condition had been fulfilled.' "Whether the First to Seventh Plaintiffs or Mr Moodie were liable to pay NV Legal Pty Ltd's costs."]

Ratio Decidendi

The Court accepted the evidence of Mr Moodie and Mr Streeter, supported by contemporaneous documents and commercial probabilities, that the 8 July 2008 costs agreement was subject to oral conditions that NV Legal Pty Ltd's costs would not be payable unless Mr Moodie was appointed official liquidator of the First to Seventh Plaintiffs and, as such, realised sufficient assets to pay NV's fees. Because neither condition was fulfilled, Mr Moodie was not liable to NV Legal Pty Ltd and the First to Seventh Plaintiffs could not be liable as his principals.

Court Disposition

Declaration made that the Plaintiffs were not liable to pay the solicitors' costs; costs orders made against the First Defendant and balance of the Summons dismissed.

Orders

  • ['Declaration in terms of paragraph 2 of the Summons.' 'Order that the First Defendant pay the costs of the First to Seventh Plaintiffs in the proceedings.' 'Order that the First Defendant pay the costs of the Second and Third Defendants on the party/party basis up to 12pm on 23 March 2010 and thereafter on the...