Decon Australia Pty Ltd v TFM Epping Land Pty Ltd (No 3) [2021] FCA 147

Decon Australia Pty Ltd v TFM Epping Land Pty Ltd (No 3) [2021] FCA 147

Decon unsuccessfully challenged the DOCAs and caused the Administrators to incur costs in responding to interim and final relief sought primarily under s 445D of the Corporations Act 2001 (Cth). There was no statutory or discretionary reason to depart from the conventional approach that the unsuccessful creditor meet those costs; otherwise the broader creditors of TFM and KRI would bear them. However, because TFM and KRI did not appear and played no active role, there should be no costs order as between Decon and those companies.

Jurisdiction
Australia
Judgment Date
26 February 2021
Procedural Posture
Commercial and Corporations; Corporations and Corporate Insolvency / Costs Following Dismissal of the Plaintiff's Application, Determined on the Papers
Outcome
The plaintiff was ordered to pay the third and fourth defendants' costs; no costs order was made as between the plaintiff and the first and second defendants.
Legal Topics
['deeds of Company Arrangement' "administrators' Costs" 'costs Following the Event' 'challenge to Approval of Deeds of Company Arrangement Under S 445 D of the Corporations Act 2001 (cth)']
['corporations Law' 'insolvency' 'costs'] ['deeds of Company Arrangement' "administrators' Costs" 'costs Following the Event' 'challenge to Approval of Deeds of Company Arrangement Under S 445 D of the Corporations Act 2001 (cth)']

Case Brief

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Procedural Posture

Commercial and Corporations; Corporations and Corporate Insolvency / Costs Following Dismissal of the Plaintiff's Application, Determined on the Papers

Legal Issues

  1. 1 ["Whether the plaintiff should pay the costs of the third and fourth defendants, being the Administrators, after the plaintiff's unsuccessful challenge to deeds of company arrangement and the Administrators' conduct." 'Whether any costs order should be made as between the plaintiff and the first and second defendants.']

Ratio Decidendi

Decon unsuccessfully challenged the DOCAs and caused the Administrators to incur costs in responding to interim and final relief sought primarily under s 445D of the Corporations Act 2001 (Cth). There was no statutory or discretionary reason to depart from the conventional approach that the unsuccessful creditor meet those costs; otherwise the broader creditors of TFM and KRI would bear them. However, because TFM and KRI did not appear and played no active role, there should be no costs order as between Decon and those companies.

Court Disposition

The plaintiff was ordered to pay the third and fourth defendants' costs; no costs order was made as between the plaintiff and the first and second defendants.

Orders

  • ['There be no costs order as between the Plaintiff and the First and Second Defendants.' 'The Plaintiff pay the costs of the Third and Fourth Defendants to be assessed if not agreed.']