Statue Pty Ltd v Hayson [2014] NSWSC 1558

Statue Pty Ltd v Hayson [2014] NSWSC 1558

The Plaintiff was not prevented by s 229(2)(c) of the Bankruptcy Act 1966 (Cth) or clause 10.1 of the Personal Insolvency Agreement from making and pursuing a costs application because no costs order yet existed and any order made would not be a debt provable in the arrangement created by the Personal Insolvency Agreement. It was appropriate to determine costs notwithstanding the stay. The Statement of Affairs, the Personal Insolvency Agreement schedules and the emails supported the overwhelming inference that the First Defendant admitted or owed a debt, and the Plaintiff would on the balance of probabilities have succeeded in showing a debt exceeding $500,000. No election or estoppel...

Jurisdiction
Australia
Judgment Date
06 November 2014
Procedural Posture
Costs Application in Debt Proceedings / Application for Costs After the First Defendant Entered Into a Personal Insolvency Agreement and the Proceedings Were Stayed
Outcome
The Plaintiff obtained an order for costs against the First Defendant on the ordinary basis; indemnity costs were refused.
Legal Topics
['whether Seeking Costs Was a Fresh Step in Stayed Proceedings' 'personal Insolvency Agreement Under Pt 10 of the Bankruptcy Act 1966 (cth)' 'provable Debt' 'admissions of Debt' 'ordinary Basis Costs' 'indemnity Costs']
['costs' 'civil Procedure' 'bankruptcy and Insolvency' 'debt Recovery' 'evidence'] ['whether Seeking Costs Was a Fresh Step in Stayed Proceedings' 'personal Insolvency Agreement Under Pt 10 of the Bankruptcy Act 1966 (cth)' 'provable Debt' 'admissions of Debt' 'ordinary Basis Costs' 'indemnity Costs']

Case Brief

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Procedural Posture

Costs Application in Debt Proceedings / Application for Costs After the First Defendant Entered Into a Personal Insolvency Agreement and the Proceedings Were Stayed

Legal Issues

  1. 1 ['Whether s 229(2)(c) of the Bankruptcy Act 1966 (Cth) or clause 10.1 of the Personal Insolvency Agreement prevented the Plaintiff from applying for costs.' 'Whether it was appropriate to determine costs while the debt proceedings were stayed and not concluded.' 'Whether the evidence supported a finding that the Plaintiff would, on the balance of probabilities, have succeeded in proving a debt owed by the First Defendant.' 'Whether r 42.34 UCPR prevented a costs order because of the $500,000 threshold.' 'Whether the Plaintiff was precluded by election or estoppel from seeking costs if it voted in favour of the Personal Insolvency Agreement.' 'Whether costs should be ordered on an indemnity basis.']

Ratio Decidendi

The Plaintiff was not prevented by s 229(2)(c) of the Bankruptcy Act 1966 (Cth) or clause 10.1 of the Personal Insolvency Agreement from making and pursuing a costs application because no costs order yet existed and any order made would not be a debt provable in the arrangement created by the Personal Insolvency Agreement. It was appropriate to determine costs notwithstanding the stay. The Statement of Affairs, the Personal Insolvency Agreement schedules and the emails supported the overwhelming inference that the First Defendant admitted or owed a debt, and the Plaintiff would on the balance of probabilities have succeeded in showing a debt exceeding $500,000. No election or estoppel...

Court Disposition

The Plaintiff obtained an order for costs against the First Defendant on the ordinary basis; indemnity costs were refused.

Orders

  • ["The First Defendant is to pay the Plaintiff's costs of the proceedings to date on the ordinary basis."]