Sands Contracting Pty Ltd v Cant (costs) [2021] FCA 751

Sands Contracting Pty Ltd v Cant (costs) [2021] FCA 751

There was no fault established on the part of the liquidators, who did not contest the appeal and had been removed by consent. The success of the appeal was due to new evidence presented by the plaintiffs. Since there are no assets in the company to indemnify the liquidators, and no misconduct was found, costs are to be paid out of company property (if any), not by the liquidators personally.

Parties
Plaintiff: Sands Contracting Pty Ltd (ACN 008 711 564); Plaintiff: Sands Holdings Pty Ltd (ACN 008 694 915); Plaintiff: Hecsands Pty Ltd (ACN 008 748 650); Plaintiff: Anthony Jerome Sands; Plaintiff: Carmel Jean Sands; Plaintiff: Kevin John Sands; Plaintiff: Lynne Margaret Sands (in her capacity as executor of the estate of the late Peter James Sands); Defendant: Anthony Robert Cant; Defendant: Renee Sarah Di Carlo
Jurisdiction
Australia
Judgment Date
02 July 2021
Procedural Posture
Application for Costs Post Appeal / Costs Determination After Successful Appeal
Outcome
Costs in favour of the plaintiffs; to be paid out of property (if any) of Foodcorp (VIC) Pty Ltd (in liquidation). No adverse costs order against the liquidators personally.
Legal Topics
Proofs of Debt, Liquidators' Conduct, Appeals in Liquidation, Costs Orders
Insolvency Corporations Costs Proofs of Debt Liquidators' Conduct Appeals in Liquidation Costs Orders

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Parties

Sands Contracting Pty Ltd (ACN 008 711 564)

Plaintiff

Sands Holdings Pty Ltd (ACN 008 694 915)

Plaintiff

Hecsands Pty Ltd (ACN 008 748 650)

Plaintiff

Anthony Jerome Sands

Plaintiff

Carmel Jean Sands

Plaintiff

Kevin John Sands

Plaintiff

Lynne Margaret Sands (in her capacity as executor of the estate of the late Peter James Sands)

Plaintiff

Anthony Robert Cant

Defendant

Renee Sarah Di Carlo

Defendant

Procedural Posture

Application for Costs Post Appeal / Costs Determination After Successful Appeal

Legal Issues

  1. 1 Whether costs should be ordered against the former liquidators personally or out of company property (if any) following successful appeal of adjudication of proof of debt

Ratio Decidendi

There was no fault established on the part of the liquidators, who did not contest the appeal and had been removed by consent. The success of the appeal was due to new evidence presented by the plaintiffs. Since there are no assets in the company to indemnify the liquidators, and no misconduct was found, costs are to be paid out of company property (if any), not by the liquidators personally.

Court Disposition

Costs in favour of the plaintiffs; to be paid out of property (if any) of Foodcorp (VIC) Pty Ltd (in liquidation). No adverse costs order against the liquidators personally.

Orders

  • The Plaintiffs' costs of the proceedings be paid out of the property (if any) of Foodcorp (VIC) Pty Ltd (ACN 074 563 385) (in liquidation).