ET Petroleum Pty Ltd v Clarenden Pty Ltd [2008] NSWSC 590

ET Petroleum Pty Ltd v Clarenden Pty Ltd [2008] NSWSC 590

Although Pt 42 r 20 made the usual starting point that the plaintiff pay the defendant's costs on dismissal, the circumstances justified a different order. The statutory demand had already been reduced by the full amount of the defendant's asserted offsetting claims, the debt comprised assessed and certified costs orders entered in the Court, no stay had been obtained, and the defendant's explanation for non-payment depended on a cross-claim not then filed. However, after receiving the 22 November affidavit, the plaintiff had enough material to make reasonable enquiries about the defendant's property, encumbrances and conditional loan approval, and by two weeks later could form an...

Jurisdiction
Australia
Judgment Date
14 May 2008
Procedural Posture
Winding Up Proceedings Based on Non Compliance With a Statutory Demand / Consequential Costs Orders Following Dismissal of Proceedings by Consent
Outcome
The proceedings were to be dismissed, and a partial costs order was made in favour of the plaintiff.
Legal Topics
['statutory Demand' 'winding Up' 'solvency Evidence' 'costs After Dismissal' 'uniform Civil Procedure Rules Pt 42 R 20']
['corporations Law' 'civil Procedure' 'costs'] ['statutory Demand' 'winding Up' 'solvency Evidence' 'costs After Dismissal' 'uniform Civil Procedure Rules Pt 42 R 20']

Case Brief

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Procedural Posture

Winding Up Proceedings Based on Non Compliance With a Statutory Demand / Consequential Costs Orders Following Dismissal of Proceedings by Consent

Legal Issues

  1. 1 ['Whether the normal costs order under Uniform Civil Procedure Rules Pt 42 r 20 should apply after dismissal of the proceedings.' "Whether the Court should exercise its discretion to order costs other than that the plaintiff pay the defendant's costs." "What costs order was appropriate having regard to the defendant's non-payment of the varied statutory demand and the plaintiff's later ability to assess the defendant's solvency."]

Ratio Decidendi

Although Pt 42 r 20 made the usual starting point that the plaintiff pay the defendant's costs on dismissal, the circumstances justified a different order. The statutory demand had already been reduced by the full amount of the defendant's asserted offsetting claims, the debt comprised assessed and certified costs orders entered in the Court, no stay had been obtained, and the defendant's explanation for non-payment depended on a cross-claim not then filed. However, after receiving the 22 November affidavit, the plaintiff had enough material to make reasonable enquiries about the defendant's property, encumbrances and conditional loan approval, and by two weeks later could form an...

Court Disposition

The proceedings were to be dismissed, and a partial costs order was made in favour of the plaintiff.

Orders

  • ["The defendant pay the plaintiff's costs up to and including 7 December." 'After 7 December there will be no order as to costs.']