In the matter of Riverside Spares Pty Ltd [2019] NSWSC 1900

In the matter of Riverside Spares Pty Ltd [2019] NSWSC 1900

Because the company was wound up on the basis of an agreed fact that the relationship between members had broken down, and there had been no hearing on the merits, the Court could not determine the correctness of the oppression allegations, the reasons for the breakdown, or any degree of fault. It was therefore inappropriate either to order the Defendants to pay the Plaintiff's costs or to make no order as to the Plaintiff's costs. The proper order was the usual order under s 466(2), with the Plaintiff's costs and Mr Salier's tutor costs paid as costs of the winding up, and no order for the costs of the costs application.

Jurisdiction
Australia
Judgment Date
21 November 2019
Procedural Posture
Corporations List Proceeding for Relief Under Ss 233, 290 and 461 of the Corporations Act 2001 (cth), Including Winding Up on the Just and Equitable Ground / Costs Application Following Order Winding Up the Company Under S 461(1)(k) of the Corporations Act 2001 (cth)
Outcome
The Plaintiff's costs of the proceedings and Mr Salier's costs were ordered to be paid as costs in the winding up; no order was made as to the costs of the costs application.
Legal Topics
['winding Up' 'just and Equitable Winding Up' 'costs in Winding Up' 'corporations Act 2001 (cth) S 466(2)' 'oppression']
['corporations' 'costs'] ['winding Up' 'just and Equitable Winding Up' 'costs in Winding Up' 'corporations Act 2001 (cth) S 466(2)' 'oppression']

Case Brief

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Procedural Posture

Corporations List Proceeding for Relief Under Ss 233, 290 and 461 of the Corporations Act 2001 (cth), Including Winding Up on the Just and Equitable Ground / Costs Application Following Order Winding Up the Company Under S 461(1)(k) of the Corporations Act 2001 (cth)

Legal Issues

  1. 1 ["Whether the Court should order otherwise for the purposes of s 466(2) of the Corporations Act 2001 (Cth) so that the Plaintiff's costs were not borne as costs in the winding up." 'Whether the winding up order made on an agreed breakdown of the relationship between members should be characterised as a capitulation by the Second and Third Defendants justifying a different costs order.' "Whether, in the absence of a hearing on the merits, the Court should make no order as to costs or determine that one party should pay another party's costs."]

Ratio Decidendi

Because the company was wound up on the basis of an agreed fact that the relationship between members had broken down, and there had been no hearing on the merits, the Court could not determine the correctness of the oppression allegations, the reasons for the breakdown, or any degree of fault. It was therefore inappropriate either to order the Defendants to pay the Plaintiff's costs or to make no order as to the Plaintiff's costs. The proper order was the usual order under s 466(2), with the Plaintiff's costs and Mr Salier's tutor costs paid as costs of the winding up, and no order for the costs of the costs application.

Court Disposition

The Plaintiff's costs of the proceedings and Mr Salier's costs were ordered to be paid as costs in the winding up; no order was made as to the costs of the costs application.

Orders

  • ["The Plaintiff's costs of the proceedings, as agreed or as assessed, and the costs of Mr Salier in acting as tutor quantified in the sum of $2,275, be paid as costs of the winding up pursuant to s 466(2) of the Corporations Act." 'There be no order as to the costs of the costs application today.']