In the matter of Employ (No 96) Pty Limited (in liquidation) [2013] NSWSC 456

In the matter of Employ (No 96) Pty Limited (in liquidation) [2013] NSWSC 456

Payments by Employ (No 96) Pty Limited to DVT Services (NSW) Pty Limited were unfair preferences or uncommercial transactions, voidable under the Corporations Act. DVT Services is to pay specified sums and interest to the liquidated company. DVT Services to pay plaintiffs' costs against it. Plaintiffs to pay 25% of the costs of Messrs de Vries and Tayeh, reflecting mixed success and the parties' conduct prolonging the trial and causing wasted costs. Indemnity costs refused as judgment was not no less favourable than the plaintiffs' compromise offer against all defendants.

Jurisdiction
Australia
Judgment Date
01 May 2013
Procedural Posture
Corporations/costs Application / Final Judgment on Orders and Costs
Outcome
Declarations and orders granted as specified; parties awarded costs in proportion to success/failure; interest awarded; specified monetary orders made.
Legal Topics
['unfair Preference' 'uncommercial Transaction' 'voidable Transaction' 'costs Apportionment' 'indemnity Costs' 'offer of Compromise']
['corporations Law' 'civil Procedure'] ['unfair Preference' 'uncommercial Transaction' 'voidable Transaction' 'costs Apportionment' 'indemnity Costs' 'offer of Compromise']

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Procedural Posture

Corporations/costs Application / Final Judgment on Orders and Costs

Legal Issues

  1. 1 ['Whether specified payments were unfair preferences under s 588FA(1) Corporations Act 2001 (Cth)' 'Whether specified payments were uncommercial transactions under s 588FB Corporations Act 2001 (Cth)' 'How costs should be apportioned among multiple parties with mixed success' 'Whether indemnity costs should be ordered following an unaccepted offer of compromise']

Ratio Decidendi

Payments by Employ (No 96) Pty Limited to DVT Services (NSW) Pty Limited were unfair preferences or uncommercial transactions, voidable under the Corporations Act. DVT Services is to pay specified sums and interest to the liquidated company. DVT Services to pay plaintiffs' costs against it. Plaintiffs to pay 25% of the costs of Messrs de Vries and Tayeh, reflecting mixed success and the parties' conduct prolonging the trial and causing wasted costs. Indemnity costs refused as judgment was not no less favourable than the plaintiffs' compromise offer against all defendants.

Court Disposition

Declarations and orders granted as specified; parties awarded costs in proportion to success/failure; interest awarded; specified monetary orders made.

Orders

  • ['Declaration that specified payments were unfair preferences under s 588FA(1) Corporations Act 2001 (Cth).' 'Declaration that specified payments were uncommercial transactions under s 588FB Corporations Act 2001 (Cth).' 'Declaration that these transactions are voidable under s 588FE(2) Corporations Act 2001 (Cth).'...