Lucky v Ives (Winding Up Application) [2024] FCA 1501

Lucky v Ives (Winding Up Application) [2024] FCA 1501

The respondents’ opposition to the winding up application was hopeless; the company was at an irretrievable deadlock and a winding up was almost inevitable. The applicants were almost certain to succeed had the matter proceeded. The respondents prolonged the litigation with groundless contentions, justifying an order for indemnity costs against the first and third respondents.

Parties
First Applicant: Utaariki Mave Lucky; Second Applicant: Luta Investments Pty Ltd (ACN 163 981 860); First Respondent: Ben Ives; Second Respondent: Chief Trade Credit Insurance Pty Ltd; Third Respondent: Benives Asset Management Pty Ltd (ACN 139 308 375)
Jurisdiction
Australia
Judgment Date
18 December 2024
Procedural Posture
Corporations – Winding Up Application / Post Hearing, Determination of Costs After Dismissal of Originating Process
Outcome
Originating process dismissed; costs ordered on indemnity basis against first and third respondents
Legal Topics
Winding Up on Just and Equitable Ground, Indemnity Costs, Deadlock Between Directors, Costs – Hopeless Case
Corporations Law Insolvency Law Winding Up on Just and Equitable Ground Indemnity Costs Deadlock Between Directors Costs – Hopeless Case

Case Brief

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Parties

Utaariki Mave Lucky

First Applicant

Luta Investments Pty Ltd (ACN 163 981 860)

Second Applicant

Ben Ives

First Respondent

Chief Trade Credit Insurance Pty Ltd

Second Respondent

Benives Asset Management Pty Ltd (ACN 139 308 375)

Third Respondent

Procedural Posture

Corporations – Winding Up Application / Post Hearing, Determination of Costs After Dismissal of Originating Process

Legal Issues

  1. 1 Whether the respondents should pay the applicants’ costs on an indemnity basis after the originating process for winding up was dismissed as moot
  2. 2 Whether the opposition to the winding up application was baseless and justified indemnity costs

Ratio Decidendi

The respondents’ opposition to the winding up application was hopeless; the company was at an irretrievable deadlock and a winding up was almost inevitable. The applicants were almost certain to succeed had the matter proceeded. The respondents prolonged the litigation with groundless contentions, justifying an order for indemnity costs against the first and third respondents.

Court Disposition

Originating process dismissed; costs ordered on indemnity basis against first and third respondents

Orders

  • The originating process be dismissed.
  • Subject to any previous costs orders, the first and third respondents pay the applicants’ costs of the proceedings on an indemnity basis.