Brodyn Pty Ltd v Dasein Constructions Pty Ltd (No 2) [2005] NSWSC 302

Brodyn Pty Ltd v Dasein Constructions Pty Ltd (No 2) [2005] NSWSC 302

Because the plaintiff succeeded on the central challenge to rejection of its proof of debt, and authorities support ordering an unsuccessful administrator or liquidator to pay costs with indemnity from company assets where the officeholder acted reasonably, the proper order was that both defendants pay the plaintiff's costs, with the second defendant at liberty to receive his costs, including costs paid to the plaintiff, out of the assets of the first defendant. The discharged bank guarantee did not alter that result, and the matter was one of formulating orders rather than applying the slip rule.

Jurisdiction
Australia
Judgment Date
07 April 2005
Procedural Posture
Corporations Proof of Debt Appeal and Costs Determination / Formulation of Final Orders After Earlier Judgment, Including Proper Order for Costs
Outcome
The defendants were ordered to pay the plaintiff's costs of the proceedings, and the second defendant was given liberty to receive his costs, including costs paid to the plaintiff, out of the assets of the first defendant.
Legal Topics
['proof of Debt' 'appeal From Rejection of Proof of Debt' 'costs' "administrator's Liability for Costs" 'indemnity From Company Assets' 'slip Rule']
['corporations Law' 'insolvency' 'civil Procedure'] ['proof of Debt' 'appeal From Rejection of Proof of Debt' 'costs' "administrator's Liability for Costs" 'indemnity From Company Assets' 'slip Rule']

Case Brief

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Procedural Posture

Corporations Proof of Debt Appeal and Costs Determination / Formulation of Final Orders After Earlier Judgment, Including Proper Order for Costs

Legal Issues

  1. 1 ["Whether the plaintiff's costs of the proceedings should be ordered against both defendants after the successful challenge to rejection of the proof of debt." 'Whether the administrator should be personally subject to the costs order and, if so, whether he should have liberty to be indemnified out of the assets of the company.' 'Whether the matter involved application of the slip rule or formulation of orders not yet formally taken out.']

Ratio Decidendi

Because the plaintiff succeeded on the central challenge to rejection of its proof of debt, and authorities support ordering an unsuccessful administrator or liquidator to pay costs with indemnity from company assets where the officeholder acted reasonably, the proper order was that both defendants pay the plaintiff's costs, with the second defendant at liberty to receive his costs, including costs paid to the plaintiff, out of the assets of the first defendant. The discharged bank guarantee did not alter that result, and the matter was one of formulating orders rather than applying the slip rule.

Court Disposition

The defendants were ordered to pay the plaintiff's costs of the proceedings, and the second defendant was given liberty to receive his costs, including costs paid to the plaintiff, out of the assets of the first defendant.

Orders

  • ['The Court declares that the judgment obtained by the first defendant in District Court proceedings No 4868 of 2003 in the sum of $183,493.64 is extinguished.' "That the administrator admit the plaintiff's claim in the sum of $78,459.65." 'That the first defendant consent with the plaintiff to discharge the...