Koadlow v Atkins [2023] FCA 136

Koadlow v Atkins [2023] FCA 136

Due to the respondents’ protracted and consistent pattern of non-compliance with court orders and absent evidence of their willingness to comply, it is appropriate to make self-executing orders for strike out and judgment, subject to a stay regarding the first respondent’s debtor’s petition. Discovery orders and indemnity costs were warranted based on non-compliance and resultant unnecessary costs.

Parties
Applicant: David Charles Koadlow; Applicant: Kadoo Pty. Limited; Applicant: Binvid Pty Ltd; Respondent: Mitchell Alexander Gray Atkins; Respondent: #2 Pty Ltd; Respondent: Magnolia Capital IM Pty Ltd; Respondent: Magnolia Absolute Return Fund II Pty Ltd
Jurisdiction
Australia
Judgment Date
23 February 2023
Procedural Posture
Civil / Interlocutory Application; Orders for Compliance and Self Executing Strike Out
Outcome
Interlocutory orders made granting further time for compliance, conditional self-executing order for strike out and judgment stayed pending insolvency search, discovery orders, and indemnity costs to be paid forthwith.
Legal Topics
Non Compliance With Court Orders, Self Executing Orders, Discovery, Corporate Insolvency
Practice and Procedure Commercial Law Corporations Law Non Compliance With Court Orders Self Executing Orders Discovery Corporate Insolvency

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Parties

David Charles Koadlow

Applicant

Kadoo Pty. Limited

Applicant

Binvid Pty Ltd

Applicant

Mitchell Alexander Gray Atkins

Respondent

#2 Pty Ltd

Respondent

Magnolia Capital IM Pty Ltd

Respondent

Magnolia Absolute Return Fund II Pty Ltd

Respondent

Procedural Posture

Civil / Interlocutory Application; Orders for Compliance and Self Executing Strike Out

Legal Issues

  1. 1 Whether self-executing order to strike out respondents' defence and give judgment on liability should be made if outlines of evidence for trial not filed by respondents
  2. 2 Whether consequences of potential bankruptcy of first respondent affect appropriateness of making self-executing order
  3. 3 Whether discovery orders for documents and data should be made against first respondent

Ratio Decidendi

Due to the respondents’ protracted and consistent pattern of non-compliance with court orders and absent evidence of their willingness to comply, it is appropriate to make self-executing orders for strike out and judgment, subject to a stay regarding the first respondent’s debtor’s petition. Discovery orders and indemnity costs were warranted based on non-compliance and resultant unnecessary costs.

Court Disposition

Interlocutory orders made granting further time for compliance, conditional self-executing order for strike out and judgment stayed pending insolvency search, discovery orders, and indemnity costs to be paid forthwith.

Orders

  • Time to comply with filing outlines of evidence extended to 4.00pm 1 March 2023.
  • If respondents fail to comply, first and second respondents’ defence struck out and judgment given for relief claimed with damages/equitable compensation to be assessed.