In the matter of Vangory Holdings Pty Ltd [2015] NSWSC 801

In the matter of Vangory Holdings Pty Ltd [2015] NSWSC 801

Vangory acted unreasonably in conducting the s 459S application by relying on Mr Dawson's affidavit evidence when cross-examination showed he had little or no knowledge of key matters, wasting substantial hearing time and causing FDL and the Third and Fourth Defendants unnecessary costs. That warranted indemnity costs against Vangory. No costs order was warranted against Mr Dawson because, although he was a party and a witness, he did not play an active role as a party in the s 459S application and was not shown to have an economic interest or active conduct sufficient to justify a personal costs order. The Third and Fourth Defendants were entitled to costs because Vangory allowed them to...

Jurisdiction
Australia
Judgment Date
22 June 2015
Procedural Posture
Costs Determination in Winding Up Proceedings Following an Interlocutory Application for Leave Under S 459 S of the Corporations Act 2001 (cth) / After Dismissal of Vangory Holdings Pty Ltd's Application for Leave Under S 459 S; Further Written Submissions as to Costs
Outcome
Costs order made against the First Defendant on an indemnity basis in favour of the Plaintiff and the Third and Fourth Defendants; costs payable forthwith only for the Third and Fourth Defendants; no costs order made against the Second Defendant.
Legal Topics
['indemnity Costs' 'costs Following the Event' 'costs Against Director Joined as Party' 'costs Payable Forthwith' 'leave to Oppose Winding Up Application Under S 459 S of the Corporations Act 2001 (cth)']
['procedure' 'corporations Law'] ['indemnity Costs' 'costs Following the Event' 'costs Against Director Joined as Party' 'costs Payable Forthwith' 'leave to Oppose Winding Up Application Under S 459 S of the Corporations Act 2001 (cth)']

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Procedural Posture

Costs Determination in Winding Up Proceedings Following an Interlocutory Application for Leave Under S 459 S of the Corporations Act 2001 (cth) / After Dismissal of Vangory Holdings Pty Ltd's Application for Leave Under S 459 S; Further Written Submissions as to Costs

Legal Issues

  1. 1 ['Whether Vangory should pay costs of the s 459S application on an indemnity basis.' 'Whether costs should be ordered against Mr Dawson personally.' 'Whether the Third and Fourth Defendants should have a costs order in their favour.' 'Whether any costs should be payable forthwith.']

Ratio Decidendi

Vangory acted unreasonably in conducting the s 459S application by relying on Mr Dawson's affidavit evidence when cross-examination showed he had little or no knowledge of key matters, wasting substantial hearing time and causing FDL and the Third and Fourth Defendants unnecessary costs. That warranted indemnity costs against Vangory. No costs order was warranted against Mr Dawson because, although he was a party and a witness, he did not play an active role as a party in the s 459S application and was not shown to have an economic interest or active conduct sufficient to justify a personal costs order. The Third and Fourth Defendants were entitled to costs because Vangory allowed them to...

Court Disposition

Costs order made against the First Defendant on an indemnity basis in favour of the Plaintiff and the Third and Fourth Defendants; costs payable forthwith only for the Third and Fourth Defendants; no costs order made against the Second Defendant.

Orders

  • ['The order as to costs made in the judgment delivered on 12 May 2015 is vacated.' "The First Defendant pay the Plaintiff's costs of and incidental to the application heard before Black J on 21 and 22 April 2015 on an indemnity basis, as agreed or as assessed." "The First Defendant pay the Third and Fourth...