In the matter of St Gregory’s Armenian School Inc [2015] NSWSC 1701

In the matter of St Gregory’s Armenian School Inc [2015] NSWSC 1701

Because the liquidator was substantially successful on the Plaintiffs' appeal under s 1321 of the Corporations Act 2001 (Cth), while the Cross-Claimants failed on the Cross-Claim, costs should follow those events: the Plaintiffs should jointly and severally pay the liquidator's costs of the Originating Process on the ordinary basis, and the Cross-Claimants should pay the Cross-Defendants' costs of the Cross-Claim on the ordinary basis. The evidence, hearing time and submissions showed that the substantial majority of the proceedings concerned the Plaintiffs' primary claims, so assessment should proceed on the basis that at least 75% of hearing and preparation time was attributable to...

Jurisdiction
Australia
Judgment Date
16 November 2015
Procedural Posture
Appeal Under S 1321 of the Corporations Act 2001 (cth) Concerning Proofs of Debt and a Cross Claim in Winding Up Proceedings / Consequential Orders and Costs After Principal Judgment
Outcome
Orders substantially in accordance with the liquidator's short minutes of order, as amended.
Legal Topics
['winding Up' 'proofs of Debt' 'appeal Under S 1321 of the Corporations Act 2001 (cth)' 'costs Follow the Event' 'apportionment of Costs' 'set Off']
['corporations' 'civil Procedure' 'costs'] ['winding Up' 'proofs of Debt' 'appeal Under S 1321 of the Corporations Act 2001 (cth)' 'costs Follow the Event' 'apportionment of Costs' 'set Off']

Case Brief

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Procedural Posture

Appeal Under S 1321 of the Corporations Act 2001 (cth) Concerning Proofs of Debt and a Cross Claim in Winding Up Proceedings / Consequential Orders and Costs After Principal Judgment

Legal Issues

  1. 1 ['What consequential orders should be made in relation to proof of debt numbered 113 lodged by Dr Ghougassian.' 'Whether payments otherwise payable to Dr Ghougassian should be reduced by amounts already repaid to him.' "Whether the Originating Process and the liquidator's Amended Interlocutory Process and Cross-Claim should be dismissed." "What costs orders should be made given the liquidator's substantial success on the Plaintiffs' s 1321 claims and the Cross-Claimants' failure on the Cross-Claim." "Whether assessment of costs should proceed on the basis that at least 75% of hearing and preparation time was attributable to the Plaintiffs' claims and the remainder to the Cross-Claim."]

Ratio Decidendi

Because the liquidator was substantially successful on the Plaintiffs' appeal under s 1321 of the Corporations Act 2001 (Cth), while the Cross-Claimants failed on the Cross-Claim, costs should follow those events: the Plaintiffs should jointly and severally pay the liquidator's costs of the Originating Process on the ordinary basis, and the Cross-Claimants should pay the Cross-Defendants' costs of the Cross-Claim on the ordinary basis. The evidence, hearing time and submissions showed that the substantial majority of the proceedings concerned the Plaintiffs' primary claims, so assessment should proceed on the basis that at least 75% of hearing and preparation time was attributable to...

Court Disposition

Orders substantially in accordance with the liquidator's short minutes of order, as amended.

Orders

  • ['In relation to proof of debt numbered 113 lodged by the Second Plaintiff ("Dr Ghougassian") in the amount of $13,493.50: (a) The Defendant ("the liquidator\'s") partial rejection of the proof of debt be set aside; (b) The proof of debt be admitted in whole; and (c) Any payment of the amount claimed in that proof...