Bindaree Beef v Chinatex (Australia)

[2018] NSWSC 949

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Bindaree Beef v Chinatex (Australia) [2018] NSWSC 949
Hearing dates:	15/06/2018
Date of orders:	15 June 2018
Decision date:	15 June 2018
Jurisdiction:	Equity - Commercial List
Before:	McDougall J
Decision:	Plaintiff’s application for leave to continue proceedings against first defendant dismissed with costs.
Catchwords:	CIVIL PROCEDURE – application for leave to continue proceedings against first defendant – where such leave would have short-lived effect – where plaintiff sought an adjournment at commencement of hearing – adjournment would render any leave granted inutile – application for adjournment denied – plaintiff thereby indicated it did not press its motion.   COSTS – where plaintiff submitted that it might re-agitate its motion at some later time – whether costs discretion should be exercised in a contingent way – where no utility in bringing the present application – costs should follow the event – insufficient basis to order costs on the indemnity basis.
Legislation Cited:	Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Bindaree Beef Pty Ltd (Plaintiff) Chinatex (Australia) Pty Ltd (First Defendant) Unibale Pty Ltd (Second Defendant) Chinatex Fortune Company Ltd (Third Defendant)
Representation:	Counsel: TW Marskell (Plaintiff) ML Rose (First Defendant) PR Gaffney (Second and Third Defendants)   Solicitors: Hunt Partners (Plaintiff) Dentons (First Defendant) Minter Ellison (Second and Third Defendants)
File Number(s):	2017/377290

Judgment   (ex tempore – revised 19 june 2018)

1. HIS HONOUR:   The plaintiff’s notice of motion filed on 18 May 2018 sought leave under s 440D of the Corporations Act 2001 (Cth) to continue proceedings against the first defendant. That application was opposed. When it came before the court today, the plaintiff sought to adjourn the motion. That seemed to me (and still seems to me) to lack any utility in circumstances where the second meeting of creditors will be held in a very short time.

2. If leave to proceed had been granted, it would have been only for a short period of time up until that meeting. If the adjournment were granted, the effective duration of the leave would be diminished accordingly. There were submissions as to the impact that the grant of leave might have on what is to happen at the meeting, and to the effect that it would have by way of precedent if a grant of leave under s 444E were thought necessary.    It does not seem to me to be desirable to prosecute an application for leave, which lacks utility in itself, for those ulterior purposes.

3. Upon being notified of my view that the adjournment application should not be granted, the plaintiff, after consideration, indicated that it did not wish to press its motion.

4. In the usual way, there is a dispute as to costs. The plaintiff suggested that there might be some further application for leave and that if such an application were filed within a short and discrete period of time, the costs of this motion should be costs in that motion; otherwise the plaintiff accepted it should pay the costs.

5. I really do not think it is appropriate to exercise the costs discretion in some contingent way, so that the outcome is dependent on what happens in some motion not yet filed, which may turn on totally different circumstances. The simple point is that this motion, to the extent that it was pressed, lacks utility. It ought to be disposed of. The costs consequences ought follow now. This does not seem to me to be a case within UCPR r 42.7 where, in some way, what happens subsequently in the proceedings may be seen to inform the proper exercise of the costs discretion.

6. The second and third defendants, perhaps bravely, sought an order that costs be assessed on the indemnity basis for a period of time. That was based, as is all too often the case, on a letter sent that agitated the differences between the parties and sought in effect to talk the plaintiff out of proceeding.

7. I am entirely unclear why it is thought appropriate to generate work (and hence costs) by exchanging letters, the inevitable effect of which in many cases is to distract the parties from the proper consideration of their position in the litigation. I do not regard that as a sufficient basis in this case for ordering costs on the indemnity basis. I hasten to add that I might have come to a different view in a different case where considerations are otherwise.

8. The parties are agreed that to the extent that the stay presently in place as against the first defendant does not effect a stay of the whole proceedings, (in my view it would not, but apparently there are judicial views to the contrary), the balance of the procedure should be stayed in any event for a short period of time until the outcome of the second meeting of creditors is known. I agree with that. I also agree that it is appropriate to discharge the procedural orders made earlier in the case.

9. For those reasons, I make orders in accordance with paras 1 to 5, as amended, of the short minutes of order, initialled by me and dated today’s date.

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Amendments

28 June 2018 - Paragraph [6].

Decision last updated: 28 June 2018