Bovis Lend Lease v Wily [2003] NSWSC 884

Bovis Lend Lease v Wily [2003] NSWSC 884

The court held that, although substantial deficiencies were found in the conduct and reporting of the deed administrator (Mr Javorsky), these did not rise to the level of dishonesty or maladministration justifying personal liability for costs. Costs orders were made against certain parties including the administrator and company, but the administrator retained indemnity from company assets for costs properly incurred. The bulk of costs followed the principal practical relief obtained.

Parties
Plaintiff: Bovis Lend Lease Pty Ltd; Defendant: Andrew Wily; Defendant: Thomas Javorsky; Defendant: Interline Interior Linings Pty Ltd (in liquidation) (administrator appointed); Defendant: Interline Interior Linings (NSW) Pty Ltd; Defendant: Tui Turipa Ullrich Gilbert; Defendant: David Anthony Hurst; Plaintiff: HIH Workers Compensation Pty Ltd; Applicant: Tui Gilbert; Applicant: Tui Gilbert Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
30 September 2003
Procedural Posture
Applications to Challenge Company Administration and Winding Up; Costs Determination / Post Judgment Costs Orders
Outcome
Orders as to costs in three proceedings—costs following the event with detailed specification of parties liable; deed administrator not held personally liable for costs beyond indemnity from the company's assets; winding up not terminated.
Legal Topics
Voluntary Administration, Deed of Company Arrangement, Winding Up, Costs, Administrators' Indemnity
Corporations Law Equity Voluntary Administration Deed of Company Arrangement Winding Up Costs Administrators' Indemnity

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Parties

Bovis Lend Lease Pty Ltd

Plaintiff

Andrew Wily

Defendant

Thomas Javorsky

Defendant

Interline Interior Linings Pty Ltd (in liquidation) (administrator appointed)

Defendant

Interline Interior Linings (NSW) Pty Ltd

Defendant

Tui Turipa Ullrich Gilbert

Defendant

David Anthony Hurst

Defendant

HIH Workers Compensation Pty Ltd

Plaintiff

Tui Gilbert

Applicant

Tui Gilbert Holdings Pty Ltd

Applicant

Procedural Posture

Applications to Challenge Company Administration and Winding Up; Costs Determination / Post Judgment Costs Orders

Legal Issues

  1. 1 Whether costs orders should be made against a deed administrator after termination of a deed of company arrangement; Whether costs orders should be limited to assets of the company; Whether deed administrator should be personally liable for costs; Entitlement of administrator to indemnity for costs from company assets

Ratio Decidendi

The court held that, although substantial deficiencies were found in the conduct and reporting of the deed administrator (Mr Javorsky), these did not rise to the level of dishonesty or maladministration justifying personal liability for costs. Costs orders were made against certain parties including the administrator and company, but the administrator retained indemnity from company assets for costs properly incurred. The bulk of costs followed the principal practical relief obtained.

Court Disposition

Orders as to costs in three proceedings—costs following the event with detailed specification of parties liable; deed administrator not held personally liable for costs beyond indemnity from the company's assets; winding up not terminated.

Orders

  • In proceeding No 6062 of 2001, plaintiff (Bovis Lend Lease Pty Ltd) to pay defendants' costs as agreed or assessed.
  • In proceeding No 1309 of 2002, the first, second, third, and fifth defendants to pay the plaintiff's costs (excluding cross-claim costs); the same defendants to pay the fourth defendant's costs (excluding cross-claim costs); no order as to costs for the cross-claim; for the second defendant, plaintiff’s and fourth...