Aquisite Pty Ltd v Moss (No 2) [2023] FCA 727

Aquisite Pty Ltd v Moss (No 2) [2023] FCA 727

The plaintiff was entitled to the declaration and judgment sums because the earlier reasons established that the first defendant was a director in fact liable for insolvent trading and that the third defendant received uncommercial weekly payments. Pre-judgment interest was allowed under s 51A because no good cause was shown against it. Costs were awarded to the plaintiff against the first and third defendants, but limited to the proceedings against each of them, because the plaintiff was wholly unsuccessful on distinct claims against the second and fourth defendants. The unaccepted Calderbank offer justified indemnity costs from 1 December 2020 against the first and third defendants...

Jurisdiction
Australia
Judgment Date
30 June 2023
Procedural Posture
Corporations Proceeding Concerning Director Liability for Insolvent Trading, Uncommercial Transactions, Interest and Costs / Consequential Orders on Declaration, Quantification of Loss, Interest and Costs Determined on the Papers After Reasons Published on 5 May 2023
Outcome
Declaration and judgments entered for the plaintiff against the first and third defendants with pre-judgment interest; indemnity costs awarded against the first and third defendants from 1 December 2020; plaintiff ordered to pay the second and fourth defendants' party and party costs.
Legal Topics
['director in Fact' 'insolvent Trading' 'uncommercial Transactions' 'pre Judgment Interest' 'calderbank Offer' 'indemnity Costs' 'party and Party Costs']
['corporations' 'corporate Insolvency' 'costs'] ['director in Fact' 'insolvent Trading' 'uncommercial Transactions' 'pre Judgment Interest' 'calderbank Offer' 'indemnity Costs' 'party and Party Costs']

Case Brief

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Procedural Posture

Corporations Proceeding Concerning Director Liability for Insolvent Trading, Uncommercial Transactions, Interest and Costs / Consequential Orders on Declaration, Quantification of Loss, Interest and Costs Determined on the Papers After Reasons Published on 5 May 2023

Legal Issues

  1. 1 ['Whether declaratory relief should be made that the first defendant was a director of Amici Food Manufacturer Pty Ltd (in liq) within s 9 of the Corporations Act 2001 (Cth).' 'Quantification of judgment and pre-judgment interest against the first defendant for insolvent trading.' 'Quantification of judgment and pre-judgment interest against the third defendant for an uncommercial transaction within s 588FB of the Corporations Act 2001 (Cth).' 'Whether the plaintiff should receive indemnity costs against the first and third defendants from 1 December 2020 by reason of a Calderbank offer.' 'Whether the second and fourth defendants should receive their costs after the proceeding against them was dismissed.']

Ratio Decidendi

The plaintiff was entitled to the declaration and judgment sums because the earlier reasons established that the first defendant was a director in fact liable for insolvent trading and that the third defendant received uncommercial weekly payments. Pre-judgment interest was allowed under s 51A because no good cause was shown against it. Costs were awarded to the plaintiff against the first and third defendants, but limited to the proceedings against each of them, because the plaintiff was wholly unsuccessful on distinct claims against the second and fourth defendants. The unaccepted Calderbank offer justified indemnity costs from 1 December 2020 against the first and third defendants...

Court Disposition

Declaration and judgments entered for the plaintiff against the first and third defendants with pre-judgment interest; indemnity costs awarded against the first and third defendants from 1 December 2020; plaintiff ordered to pay the second and fourth defendants' party and party costs.

Orders

  • ['Between 2 March 2016 and 31 May 2017, the first defendant was a director of Amici Food Manufacturer Pty Ltd (in liq) (ACN 611 078 865) within the meaning of the definition of director at s 9 of the Corporations Act 2001 (Cth).' 'There be judgment for the plaintiff against the first defendant in the sum of...