Luo v Zhai (No 5) [2015] FCA 774

Luo v Zhai (No 5) [2015] FCA 774

Leave under s 500(2) was granted because Jantom was in liquidation but there was no suggested prejudice to its contributories or creditors, dismissal of the claim and a costs order would benefit its creditors, and the liquidators consented. Jantom, having succeeded, was entitled to its costs from Mr Luo. As between Mr Luo and Ms Zhai, costs were not apportioned because the circumstances did not justify requiring Mr Luo to pay part of Ms Zhai's costs despite his failure on the misleading and deceptive conduct claim; the first respondent was ordered to pay the applicant's costs.

Jurisdiction
Australia
Judgment Date
31 July 2015
Procedural Posture
Corporations and Costs / Post Judgment Application for Leave to Continue Proceedings Against Company in Liquidation and Determination of Costs
Outcome
Leave granted to continue the proceedings against the second respondent; the application against the second respondent dismissed; costs ordered in favour of the second respondent against the applicant and in favour of the applicant against the first respondent.
Legal Topics
['leave to Proceed Against Company in Liquidation' 'stay of Proceedings' 'costs After Judgment' 'apportionment of Costs']
['corporations Law' 'civil Procedure' 'costs'] ['leave to Proceed Against Company in Liquidation' 'stay of Proceedings' 'costs After Judgment' 'apportionment of Costs']

Case Brief

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Procedural Posture

Corporations and Costs / Post Judgment Application for Leave to Continue Proceedings Against Company in Liquidation and Determination of Costs

Legal Issues

  1. 1 ['Whether leave should be granted under s 500(2) of the Corporations Act 2001 (Cth) to continue proceedings against Jantom Furniture Pty Ltd in liquidation.' 'Whether the application against the second respondent should be dismissed and whether it should receive its costs.' 'Whether costs as between Mr Luo and Ms Zhai should follow the event or be apportioned because Mr Luo failed on his misleading or deceptive conduct claim.']

Ratio Decidendi

Leave under s 500(2) was granted because Jantom was in liquidation but there was no suggested prejudice to its contributories or creditors, dismissal of the claim and a costs order would benefit its creditors, and the liquidators consented. Jantom, having succeeded, was entitled to its costs from Mr Luo. As between Mr Luo and Ms Zhai, costs were not apportioned because the circumstances did not justify requiring Mr Luo to pay part of Ms Zhai's costs despite his failure on the misleading and deceptive conduct claim; the first respondent was ordered to pay the applicant's costs.

Court Disposition

Leave granted to continue the proceedings against the second respondent; the application against the second respondent dismissed; costs ordered in favour of the second respondent against the applicant and in favour of the applicant against the first respondent.

Orders

  • ['Pursuant to s 500(2) of the Corporations Act 2001 (Cth), leave be granted to continue these proceedings against the second respondent.' 'The application against the second respondent be dismissed.' "The applicant pay the second respondent's costs of the proceeding as taxed or agreed." "The first respondent pay the...