Tolcher v National Australia Bank Ltd [2004] NSWSC 398

Tolcher v National Australia Bank Ltd [2004] NSWSC 398

Capital's opposition was vigorous but not ill-directed or perverse, and was to a degree successful. All parties before the court put forward matters that played a constructive role in producing the result on the s.564 application. Accordingly, subject to existing costs orders, the costs of the plaintiff, the National, Capital and Fuji were to be paid out of the assets of LSE as part of the costs and expenses of the winding up. Suncorp was not entitled to such an order because it was not a party, did not seek leave under rule 2.13, and did not participate in the hearing.

Jurisdiction
Australia
Judgment Date
12 May 2004
Procedural Posture
Costs Application in Proceedings Commenced by Originating Process by a Liquidator Seeking Orders Under S.564 of the Corporations Act 2001 (cth) and Directions Concerning Trust Moneys / Judgment on Costs
Outcome
Costs of the plaintiff, first defendant, second defendant and third defendant were ordered to be paid out of the assets of Lloyd Scott Enterprises Pty Limited as part of the costs and expenses of the winding up, subject to and without prejudice to earlier costs orders.
Legal Topics
['costs in Winding Up' 'priority for Creditors Supporting Liquidator' 'conventional Contradictor' 'costs Out of Company Assets' 'non Party Costs']
['corporations Law' 'civil Procedure'] ['costs in Winding Up' 'priority for Creditors Supporting Liquidator' 'conventional Contradictor' 'costs Out of Company Assets' 'non Party Costs']

Case Brief

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Procedural Posture

Costs Application in Proceedings Commenced by Originating Process by a Liquidator Seeking Orders Under S.564 of the Corporations Act 2001 (cth) and Directions Concerning Trust Moneys / Judgment on Costs

Legal Issues

  1. 1 ['Whether Capital should pay the costs of the liquidator and the National in relation to the s.564 application, in whole or at least as to two-thirds.' "Whether Capital's opposition went beyond that of a conventional contradictor so as to justify a costs order against it rather than payment out of the company's assets." 'Whether Suncorp, not being a party and not having sought leave under rule 2.13 of the Supreme Court (Corporations) Rules 1999, could have its costs paid out of the assets of the company.']

Ratio Decidendi

Capital's opposition was vigorous but not ill-directed or perverse, and was to a degree successful. All parties before the court put forward matters that played a constructive role in producing the result on the s.564 application. Accordingly, subject to existing costs orders, the costs of the plaintiff, the National, Capital and Fuji were to be paid out of the assets of LSE as part of the costs and expenses of the winding up. Suncorp was not entitled to such an order because it was not a party, did not seek leave under rule 2.13, and did not participate in the hearing.

Court Disposition

Costs of the plaintiff, first defendant, second defendant and third defendant were ordered to be paid out of the assets of Lloyd Scott Enterprises Pty Limited as part of the costs and expenses of the winding up, subject to and without prejudice to earlier costs orders.

Orders

  • ["The costs of and incidental to the liquidator's application for directions as to the status of moneys in his hands should be paid out of the assets of LSE as part of the costs and expenses of the winding up." 'Subject to and without prejudice to the orders for costs made on 22 September 2003 and 21 November 2003,...