In the matter of Kaloriziko Pty Ltd [2021] NSWSC 1276

In the matter of Kaloriziko Pty Ltd [2021] NSWSC 1276

A costs order in favour of Kaloriziko was justified because Calibre served the statutory demand, Kaloriziko was forced to commence proceedings to set it aside to avoid a statutory presumption arising, Calibre led no substantive evidence in answer to the application, and Calibre then abandoned the demand and consented to it being set aside when it would otherwise have been required to file evidence. That amounted to effective surrender to Kaloriziko's claim and supported ordering Calibre to pay Kaloriziko's costs.

Jurisdiction
Australia
Judgment Date
07 October 2021
Procedural Posture
Application to Set Aside a Creditor's Statutory Demand Under Ss 459 H and 459 J of the Corporations Act 2001 (cth) / Costs Determination on the Papers After the Statutory Demand Was Set Aside by Consent
Outcome
The Defendant pay the Plaintiff's costs of the proceedings, as agreed or as assessed.
Legal Topics
["creditor's Statutory Demand" 'application to Set Aside Statutory Demand' 'costs Where Proceedings Do Not Proceed on the Merits' 'costs Following Capitulation' 'uniform Civil Procedure Rules 2005 (nsw) R 42.1']
['corporations Law' 'civil Procedure' 'costs'] ["creditor's Statutory Demand" 'application to Set Aside Statutory Demand' 'costs Where Proceedings Do Not Proceed on the Merits' 'costs Following Capitulation' 'uniform Civil Procedure Rules 2005 (nsw) R 42.1']

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Procedural Posture

Application to Set Aside a Creditor's Statutory Demand Under Ss 459 H and 459 J of the Corporations Act 2001 (cth) / Costs Determination on the Papers After the Statutory Demand Was Set Aside by Consent

Legal Issues

  1. 1 ["Whether Calibre should pay Kaloriziko's costs where Kaloriziko commenced proceedings to set aside a creditor's statutory demand and Calibre later consented to the demand being set aside." 'Whether an order setting aside a statutory demand by consent was an event giving rise to the presumption that costs follow the event under r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW).' "Whether Calibre's conduct amounted to effective surrender or capitulation justifying a costs order against it despite no determination on the merits."]

Ratio Decidendi

A costs order in favour of Kaloriziko was justified because Calibre served the statutory demand, Kaloriziko was forced to commence proceedings to set it aside to avoid a statutory presumption arising, Calibre led no substantive evidence in answer to the application, and Calibre then abandoned the demand and consented to it being set aside when it would otherwise have been required to file evidence. That amounted to effective surrender to Kaloriziko's claim and supported ordering Calibre to pay Kaloriziko's costs.

Court Disposition

The Defendant pay the Plaintiff's costs of the proceedings, as agreed or as assessed.

Orders

  • ["The Defendant pay the Plaintiff's costs of the proceedings, as agreed or as assessed."]