Gillis v ACN 000 007 492 Ltd [2007] FCA 1151

Gillis v ACN 000 007 492 Ltd [2007] FCA 1151

The winding up application was dismissed because the plaintiffs accepted they could not establish insolvency in light of evidence that the Company was solvent. The plaintiffs were ordered to pay the defendant's costs because costs follow the event and no basis was shown to depart from that ordinary rule. Indemnity costs were refused because the Company had not unequivocally alerted the plaintiffs to the alleged non-service of the statutory demand, and the plaintiffs' conduct in continuing the application was not so unreasonable as to justify a special costs order.

Jurisdiction
Australia
Judgment Date
03 July 2007
Procedural Posture
Application for Winding Up of a Company on the Ground of Insolvency / Hearing of Originating Process Filed on 21 March 2007
Outcome
Application dismissed; plaintiffs ordered to pay the defendant's costs; indemnity costs not ordered.
Legal Topics
['winding Up' 'insolvency' 'statutory Demand' 'service on a Company' 'costs' 'indemnity Costs']
['corporations Law' 'civil Procedure'] ['winding Up' 'insolvency' 'statutory Demand' 'service on a Company' 'costs' 'indemnity Costs']

Case Brief

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Procedural Posture

Application for Winding Up of a Company on the Ground of Insolvency / Hearing of Originating Process Filed on 21 March 2007

Legal Issues

  1. 1 ['Whether the winding up application based on insolvency should be dismissed after evidence indicated that the Company was solvent.' "Whether the plaintiffs should pay the defendant's costs or whether there should be no order as to costs." 'Whether the defendant should receive indemnity costs because of alleged deficiencies in service of the statutory demand.']

Ratio Decidendi

The winding up application was dismissed because the plaintiffs accepted they could not establish insolvency in light of evidence that the Company was solvent. The plaintiffs were ordered to pay the defendant's costs because costs follow the event and no basis was shown to depart from that ordinary rule. Indemnity costs were refused because the Company had not unequivocally alerted the plaintiffs to the alleged non-service of the statutory demand, and the plaintiffs' conduct in continuing the application was not so unreasonable as to justify a special costs order.

Court Disposition

Application dismissed; plaintiffs ordered to pay the defendant's costs; indemnity costs not ordered.

Orders

  • ['The application be dismissed.' "The Plaintiff pay the Defendant's costs of the proceeding."]