Owners Corp SP66609 v Perpetual Trustee Co Ltd [2010] NSWSC 497

Owners Corp SP66609 v Perpetual Trustee Co Ltd [2010] NSWSC 497

Perpetual was likely to have failed in its s 459G application because the evidence favoured service of the statutory demand on 23 November 2009, making the application out of time, so Perpetual should pay Owners Corporation's costs of that proceeding on the party/party basis. Owners Corporation was technically entitled to rely on the statutory presumption of insolvency, so filing the winding up application was not held to be an abuse of process, but it ignored commercial reality because Perpetual's solvency was obvious or readily ascertainable, and by 11 January 2010, at the latest by 29 January 2010, Owners Corporation had clear evidence that the winding up application was doomed to...

Jurisdiction
Australia
Judgment Date
14 May 2010
Procedural Posture
Costs Dispute Arising From Statutory Demand, Winding Up Proceedings and S 459 G Proceedings / Consequential Costs Orders After Both Proceedings Were Dismissed by Consent
Outcome
Costs orders made against each party; no capping order imposed.
Legal Topics
['statutory Demand' 'winding Up Application' 'presumption of Insolvency' 'genuine Dispute' 'indemnity Costs' 'party/party Costs' "solicitors' Conduct"]
['corporations' 'civil Procedure' 'costs' 'professional Conduct'] ['statutory Demand' 'winding Up Application' 'presumption of Insolvency' 'genuine Dispute' 'indemnity Costs' 'party/party Costs' "solicitors' Conduct"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Costs Dispute Arising From Statutory Demand, Winding Up Proceedings and S 459 G Proceedings / Consequential Costs Orders After Both Proceedings Were Dismissed by Consent

Legal Issues

  1. 1 ["Whether Perpetual should pay Owners Corporation's costs of the s 459G application after that application was dismissed by consent." "Whether Owners Corporation should pay Perpetual's costs of the winding up application, and if so whether on an indemnity basis." "Whether commencement or continuation of the winding up proceedings was an abuse of process or otherwise unreasonable given Perpetual's apparent solvency." "Whether a capping order should be imposed on Perpetual's recoverable costs."]

Ratio Decidendi

Perpetual was likely to have failed in its s 459G application because the evidence favoured service of the statutory demand on 23 November 2009, making the application out of time, so Perpetual should pay Owners Corporation's costs of that proceeding on the party/party basis. Owners Corporation was technically entitled to rely on the statutory presumption of insolvency, so filing the winding up application was not held to be an abuse of process, but it ignored commercial reality because Perpetual's solvency was obvious or readily ascertainable, and by 11 January 2010, at the latest by 29 January 2010, Owners Corporation had clear evidence that the winding up application was doomed to...

Court Disposition

Costs orders made against each party; no capping order imposed.

Orders

  • ["Perpetual Trustee Company Limited is to pay Owners Corporation Strata Plan 66609's costs of the s 459G application, proceedings 2009/327426, assessed on the party/party basis." "Owners Corporation Strata Plan 66609 is to pay Perpetual Trustee Company Limited's costs of the winding up application, proceedings...