Bindaree Beef v Chinatex (Australia) [2018] NSWSC 949

Bindaree Beef v Chinatex (Australia) [2018] NSWSC 949

The plaintiff's motion for leave to continue proceedings against the first defendant lacked practical utility because the second meeting of creditors was imminent and any leave would last only for a short period. An adjournment would further diminish the effective duration of any leave, and it was not desirable to prosecute an otherwise inutile leave application for ulterior purposes connected with the creditors' meeting or a possible precedent. After the adjournment was refused, the plaintiff did not press the motion. Costs were ordered to follow the event, and indemnity costs were refused because the basis relied on was insufficient.

Jurisdiction
Australia
Judgment Date
15 June 2018
Procedural Posture
Civil Procedure Application for Leave Under S 440 D of the Corporations Act 2001 (cth) to Continue Proceedings Against the First Defendant / Notice of Motion Heard in the Equity Commercial List
Outcome
Plaintiff's application for leave to continue proceedings against the first defendant dismissed with costs.
Legal Topics
['leave to Continue Proceedings Against Company' 'adjournment of Motion' 'second Meeting of Creditors' 'costs Discretion' 'indemnity Costs' 'stay of Proceedings']
['civil Procedure' 'costs' 'corporations'] ['leave to Continue Proceedings Against Company' 'adjournment of Motion' 'second Meeting of Creditors' 'costs Discretion' 'indemnity Costs' 'stay of Proceedings']

Case Brief

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Procedural Posture

Civil Procedure Application for Leave Under S 440 D of the Corporations Act 2001 (cth) to Continue Proceedings Against the First Defendant / Notice of Motion Heard in the Equity Commercial List

Legal Issues

  1. 1 ['Whether the plaintiff should be granted an adjournment of its motion for leave to continue proceedings against the first defendant.' "Whether the plaintiff's motion for leave to continue proceedings against the first defendant should be pressed or dismissed where any leave would have only short-lived utility." 'Whether costs of the motion should follow the event or be dealt with contingently by reference to a possible future motion.' 'Whether costs should be assessed on the indemnity basis.']

Ratio Decidendi

The plaintiff's motion for leave to continue proceedings against the first defendant lacked practical utility because the second meeting of creditors was imminent and any leave would last only for a short period. An adjournment would further diminish the effective duration of any leave, and it was not desirable to prosecute an otherwise inutile leave application for ulterior purposes connected with the creditors' meeting or a possible precedent. After the adjournment was refused, the plaintiff did not press the motion. Costs were ordered to follow the event, and indemnity costs were refused because the basis relied on was insufficient.

Court Disposition

Plaintiff's application for leave to continue proceedings against the first defendant dismissed with costs.

Orders

  • ["The plaintiff's application for leave to continue proceedings against the first defendant was dismissed with costs." "The application for an adjournment of the plaintiff's motion was not granted." 'The balance of the proceedings was stayed for a short period until the outcome of the second meeting of creditors was...