Australian Competition & Consumer Commission v The Bio Enviro Plan Pty Ltd [2004] FCA 415

Australian Competition & Consumer Commission v The Bio Enviro Plan Pty Ltd [2004] FCA 415

Leave is required and granted for costs and compensation orders sought after sixth and seventh respondents' bankruptcy, on the basis that the applications were made before bankruptcy and there is no prejudice to creditors. Costs are awarded on a joint and several basis, as there are no special circumstances to depart from the usual rule. The representative application is discontinued as it is futile in light of bankruptcy and asset status.

Parties
Applicant: Australian Competition and Consumer Commission; First Respondent: The Bio Enviro Plan Pty Ltd; Second Respondent: Buyplus Commodities Brokers Pty Ltd; Third Respondent: Greenstar Co-Operative Limited; Fourth Respondent: Greenstar Management Pty Ltd; Fifth Respondent: Kevin Robert Smith; Sixth Respondent: Paul Anthony Haigh; Seventh Respondent: Trevor Sampson
Jurisdiction
Australia
Judgment Date
07 April 2004
Procedural Posture
Civil / Post Liability Orders and Costs; Consideration of Compensation and Discontinuance of Representative Claims
Outcome
Leave granted for fresh steps post-bankruptcy; compensation and costs orders made; representative proceeding discontinued with no order as to costs.
Legal Topics
Misleading or Deceptive Conduct, False Representations, Costs Orders, Compensation Orders, Representative Proceedings, Bankruptcy Leave for Fresh Steps
Trade Practices Bankruptcy Civil Procedure Misleading or Deceptive Conduct False Representations Costs Orders Compensation Orders Representative Proceedings +1 more

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Parties

Australian Competition and Consumer Commission

Applicant

The Bio Enviro Plan Pty Ltd

First Respondent

Buyplus Commodities Brokers Pty Ltd

Second Respondent

Greenstar Co-Operative Limited

Third Respondent

Greenstar Management Pty Ltd

Fourth Respondent

Kevin Robert Smith

Fifth Respondent

Paul Anthony Haigh

Sixth Respondent

Trevor Sampson

Seventh Respondent

Procedural Posture

Civil / Post Liability Orders and Costs; Consideration of Compensation and Discontinuance of Representative Claims

Legal Issues

  1. 1 Whether leave should be granted to take fresh steps against bankrupt respondents under s 58(3)(b) Bankruptcy Act
  2. 2 Whether costs orders and compensation orders should be made jointly and severally against all respondents
  3. 3 Whether the applicant should have leave to discontinue a representative application

Ratio Decidendi

Leave is required and granted for costs and compensation orders sought after sixth and seventh respondents' bankruptcy, on the basis that the applications were made before bankruptcy and there is no prejudice to creditors. Costs are awarded on a joint and several basis, as there are no special circumstances to depart from the usual rule. The representative application is discontinued as it is futile in light of bankruptcy and asset status.

Court Disposition

Leave granted for fresh steps post-bankruptcy; compensation and costs orders made; representative proceeding discontinued with no order as to costs.

Orders

  • First to seventh respondents jointly and severally pay applicant's costs, in an amount to be determined by the Registrar.
  • First to seventh respondents jointly and severally refund $20,886.85 to Francis Lee Lathlean as compensatory relief.