Brancato v Azzurri Stone (NSW) Pty Ltd, in the matter of Azzurri Stone (NSW) Pty Ltd [2020] FCA 466

Brancato v Azzurri Stone (NSW) Pty Ltd, in the matter of Azzurri Stone (NSW) Pty Ltd [2020] FCA 466

The circumstances justified departing from the usual position in s 466(2) because Mr Oliveri had proposed voluntary liquidation, Mr Brancato consented to it, but Mr Oliveri then failed to proceed and gave no explanation for doing so. The defendants never filed an appearance or identified any ground for opposing the winding up application. By not proceeding with voluntary winding up, Mr Oliveri caused the costs of the winding up proceeding to be incurred unnecessarily, making it just that he personally pay those costs on an ordinary basis. The evidence did not reveal delinquency sufficient to justify indemnity costs.

Jurisdiction
Australia
Judgment Date
14 April 2020
Procedural Posture
Corporations Winding Up Proceeding; Application for Departure From the Ordinary Costs Position Under S 466(2) of the Corporations Act 2001 (cth) / Determined on the Papers After Winding Up Order Made by Consent
Outcome
The Court ordered that the second defendant personally pay the plaintiff's costs of the winding up proceeding on a party party basis; indemnity costs were not ordered.
Legal Topics
['winding Up on Just and Equitable Grounds' "reimbursement of Winding Up Applicant's Costs Under S 466(2)" 'non Party or Director Personal Costs Order' 'indemnity Costs' 'voluntary Liquidation']
['corporations Law' 'corporate Insolvency' 'costs'] ['winding Up on Just and Equitable Grounds' "reimbursement of Winding Up Applicant's Costs Under S 466(2)" 'non Party or Director Personal Costs Order' 'indemnity Costs' 'voluntary Liquidation']

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Procedural Posture

Corporations Winding Up Proceeding; Application for Departure From the Ordinary Costs Position Under S 466(2) of the Corporations Act 2001 (cth) / Determined on the Papers After Winding Up Order Made by Consent

Legal Issues

  1. 1 ["Whether the Court should order otherwise than the ordinary position in s 466(2) of the Corporations Act 2001 (Cth) that the liquidator reimburse the winding up applicant's taxed costs out of the company's property." "Whether Mr Oliveri should personally pay Mr Brancato's costs of the winding up proceeding." 'Whether costs should be ordered on an indemnity basis or an ordinary basis.']

Ratio Decidendi

The circumstances justified departing from the usual position in s 466(2) because Mr Oliveri had proposed voluntary liquidation, Mr Brancato consented to it, but Mr Oliveri then failed to proceed and gave no explanation for doing so. The defendants never filed an appearance or identified any ground for opposing the winding up application. By not proceeding with voluntary winding up, Mr Oliveri caused the costs of the winding up proceeding to be incurred unnecessarily, making it just that he personally pay those costs on an ordinary basis. The evidence did not reveal delinquency sufficient to justify indemnity costs.

Court Disposition

The Court ordered that the second defendant personally pay the plaintiff's costs of the winding up proceeding on a party party basis; indemnity costs were not ordered.

Orders

  • ["The second defendant pay the plaintiff's costs of the winding up proceeding on a party party basis."]