In the matter of Cartwright Transport Pty Ltd (in liquidation) (No 2) [2019] NSWSC 1381

In the matter of Cartwright Transport Pty Ltd (in liquidation) (No 2) [2019] NSWSC 1381

Because the interlocutory application for appointment of provisional liquidators was overtaken by the parties' consent to final winding up orders, and because determining responsibility for costs would require a review of extensive affidavit material and disputed factual matters rather than a manifest assessment of unreasonable conduct or near-certain success, the Court refused to conduct a hypothetical trial of the interlocutory application. Fugace's request for a short adjournment to consider voluminous material was not shown to be unreasonable, and the Court was not in a position on the materials alone to find unreasonable conduct attributable to Fugace.

Jurisdiction
Australia
Judgment Date
14 October 2019
Procedural Posture
Costs Application in Company Winding Up Proceedings / Application by the Plaintiff for Costs of Interlocutory Hearings on 2 and 4 October 2019 After the Parties Consented to Final Winding Up Orders
Outcome
The application for costs was refused.
Legal Topics
['costs Where Interlocutory Application Resolved Without Determination on the Merits' 'consent Orders' 'winding Up on the Just and Equitable Ground' 'appointment of Provisional Liquidators' 'satellite Litigation as to Costs']
['costs' 'corporations'] ['costs Where Interlocutory Application Resolved Without Determination on the Merits' 'consent Orders' 'winding Up on the Just and Equitable Ground' 'appointment of Provisional Liquidators' 'satellite Litigation as to Costs']

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Procedural Posture

Costs Application in Company Winding Up Proceedings / Application by the Plaintiff for Costs of Interlocutory Hearings on 2 and 4 October 2019 After the Parties Consented to Final Winding Up Orders

Legal Issues

  1. 1 ['Whether Fugace Pty Ltd should pay the costs of the interlocutory hearings before Black J on 2 October 2019 and Rees J on 4 October 2019.' 'Whether Fugace Pty Ltd acted unreasonably before or during the litigation so as to justify a costs order.' 'Whether Cartwright Holdings Limited was almost certain to have succeeded on the interlocutory application for appointment of provisional liquidators if it had been determined.' 'Whether the Court should review extensive affidavit material and exhibits to determine costs after the interlocutory application was overtaken by consent winding up orders.']

Ratio Decidendi

Because the interlocutory application for appointment of provisional liquidators was overtaken by the parties' consent to final winding up orders, and because determining responsibility for costs would require a review of extensive affidavit material and disputed factual matters rather than a manifest assessment of unreasonable conduct or near-certain success, the Court refused to conduct a hypothetical trial of the interlocutory application. Fugace's request for a short adjournment to consider voluminous material was not shown to be unreasonable, and the Court was not in a position on the materials alone to find unreasonable conduct attributable to Fugace.

Court Disposition

The application for costs was refused.

Orders

  • ['No order for costs of the hearings on 2 and 4 October 2019.']