Cadwallader v Bajco (No.2) [2002] NSWSC 127

Cadwallader v Bajco (No.2) [2002] NSWSC 127

The company was not the real protagonist and should not bear the plaintiff's costs. The second defendants were substantially unsuccessful on important issues, had notice of the third defendants' improper purpose by at latest 19 December 1997, and distributed a materially defective report, so they should pay the plaintiff's costs without limitation and, except for costs incurred up to 19 December 1997 and the first cross-claim, should not recover their costs or costs payable by them from the company's assets. The third defendants acted in bad faith and for an improper purpose in appointing voluntary administrators while knowing the company was solvent, unsuccessfully contested the central...

Jurisdiction
Australia
Judgment Date
05 March 2002
Procedural Posture
Costs in Proceedings Concerning Termination of a Deed of Company Arrangement / Costs Judgment Following Earlier Orders Terminating the Deed of Company Arrangement and Causing the Company to Pass Into Liquidation
Outcome
Costs orders made.
Legal Topics
['deed of Company Arrangement' 'voluntary Administration' 'costs' 'administrator Indemnity and Lien' 'improper Purpose and Bad Faith by Directors' 'report to Creditors']
['corporations Law' 'insolvency' 'civil Procedure'] ['deed of Company Arrangement' 'voluntary Administration' 'costs' 'administrator Indemnity and Lien' 'improper Purpose and Bad Faith by Directors' 'report to Creditors']

Case Brief

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Procedural Posture

Costs in Proceedings Concerning Termination of a Deed of Company Arrangement / Costs Judgment Following Earlier Orders Terminating the Deed of Company Arrangement and Causing the Company to Pass Into Liquidation

Legal Issues

  1. 1 ["Whether the company should be ordered to pay the plaintiff's costs." "Whether the administrators should be ordered to pay the plaintiff's costs without limitation to the assets of the company." "Whether the administrators should be prevented from recouping their own costs and costs payable under the orders from the company's assets." "Whether the directors should pay the plaintiff's costs and the administrators' costs." 'Whether costs should be excluded for evidence of Mr Watson and Mr Love held inadmissible.' 'How costs of the cross-claims should be allocated.']

Ratio Decidendi

The company was not the real protagonist and should not bear the plaintiff's costs. The second defendants were substantially unsuccessful on important issues, had notice of the third defendants' improper purpose by at latest 19 December 1997, and distributed a materially defective report, so they should pay the plaintiff's costs without limitation and, except for costs incurred up to 19 December 1997 and the first cross-claim, should not recover their costs or costs payable by them from the company's assets. The third defendants acted in bad faith and for an improper purpose in appointing voluntary administrators while knowing the company was solvent, unsuccessfully contested the central...

Court Disposition

Costs orders made.

Orders

  • ["Second and third defendants to pay the plaintiff's costs of the proceeding, except in the case of the second defendants costs relating to the evidence of Mr Watson, and in the case of the third defendants costs relating to the evidence of Mr Watson and Mr Love." "Third defendants to pay the second defendants'...