Project Construction & Dev v Ellison [2002] NSWSC 372

Project Construction & Dev v Ellison [2002] NSWSC 372

The liquidator's conduct was not improper or unreasonable, and there was a plausible basis for the litigation at the relevant times. Therefore, the liquidator's liability for costs is to be limited to the assets of the company in liquidation, and his right of indemnity remains. No personal costs order or indemnity costs order is appropriate.

Jurisdiction
Australia
Judgment Date
08 May 2002
Procedural Posture
Civil / Costs Judgment Following Settlement of Substantive Proceedings
Outcome
Costs of defendant in 1666/01 to be paid by company in liquidation; costs of plaintiffs in 1033/00 to be paid by defendants; liquidator's liability on costs order limited to company's assets; liquidator's expenses to be costs of liquidation; no indemnity costs ordered; draft orders to be prepared and approved.
Legal Topics
['winding Up' 'liquidator Liability' 'costs Orders' 'proof of Debt' 'breach of Fiduciary Duty']
['corporations Law' 'equity'] ['winding Up' 'liquidator Liability' 'costs Orders' 'proof of Debt' 'breach of Fiduciary Duty']

Case Brief

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Procedural Posture

Civil / Costs Judgment Following Settlement of Substantive Proceedings

Legal Issues

  1. 1 ["Whether the liquidator should be personally liable for costs or limited to the company's assets" "Whether the liquidator's conduct precludes his right of indemnity out of the company's assets for costs" 'Whether costs should be awarded on an indemnity basis' 'Whether proceedings were improperly or unreasonably conducted by the liquidator']

Ratio Decidendi

The liquidator's conduct was not improper or unreasonable, and there was a plausible basis for the litigation at the relevant times. Therefore, the liquidator's liability for costs is to be limited to the assets of the company in liquidation, and his right of indemnity remains. No personal costs order or indemnity costs order is appropriate.

Court Disposition

Costs of defendant in 1666/01 to be paid by company in liquidation; costs of plaintiffs in 1033/00 to be paid by defendants; liquidator's liability on costs order limited to company's assets; liquidator's expenses to be costs of liquidation; no indemnity costs ordered; draft orders to be prepared and approved.

Orders

  • ["In proceeding 1666/01, plaintiff to pay defendant's costs." "In proceeding 1033/00, defendants to pay plaintiffs' costs, with liquidator's liability limited to the assets of the company." "Liquidator's costs and disbursements in both proceedings to be costs of the liquidation." 'No indemnity costs ordered.' 'Draft...