Brodyn Pty Ltd v Dasein Constructions Pty Ltd (No 2) - [2005] NSWSC 302

CITATION:
Brodyn Pty Ltd v Dasein Constructions Pty Ltd (No 2) [2005] NSWSC 302

HEARING DATE(S): 3 February and 10 March 2005; then written submissions

JUDGMENT DATE :

7 April 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Order that company and administrator pay plaintiff's costs of successful appeal against rejection of proof of debt.

CATCHWORDS:
CORPORATIONS [291]- Proof of debt- Successful appeal from rejection- Proper order for costs.

CASES CITED:
Cresvale Far East Ltd v Cresvale Securities Ltd (No 2) (2001) 39 ACSR 622
Kirwan v Cresvale Far East Ltd (in liq) (2002) 44 ACSR 21
Re National Wholemeal Bread & Biscuit Co [1892] 2 Ch 457
Re Rural & Veterinary Requisites Pty Ltd (in liq) (1978) 3 ACLR 597
Re Turner; Ex parte Curtin (1941) 12 ABC 1

PARTIES:
Brodyn Pty Limited t/as Time Cost and Quality (P)
Dasein Constructions Pty Limited (D1)
Brian Raymond Silvia (D2)

FILE NUMBER(S):
SC 5917/03

COUNSEL:
R Rana (P)
P G Fisher (D)

SOLICITORS:
Schraders Lawyers (P)
Turnbull Bowles Lawyers Pty Limited (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 7 April 2005

5917/03 – BRODYN PTY LTD v DASEIN CONSTRUCTIONS PTY LTD (NO 2)

JUDGMENT

1 HIS HONOUR: I delivered judgment in this matter on 15 December 2004. Because of closeness to the end of term I noted that I hoped there would be no need for any further involvement from the Court and that the parties could take out the formal orders. Unfortunately that has not been the case.

2 Paragraph 98(4) of my reasons read that the plaintiff was entitled to an order as follows:

"An order that the plaintiff is entitled to discharge of the bank guarantee and an order that the defendant pay the plaintiff's costs of the proceedings."

3 Ms Rana of counsel for the plaintiff, submitted that the appropriate order for costs is against both defendants.

4 She acknowledges that the second defendant, the administrator, was only joined by order of Barrett J on 3 May 2004 but says that:

(a) the application was vigorously fought by both defendants;

(b) the first defendant was then in administration and, apparently from what the Court was told is now in liquidation and has no funds with which to pay the plaintiff's costs;

(c) the challenge to rejection of the proof of debt was the central issue and determinative of the rights between the parties; and

5 Ms Rana referred to Cresvale Far East Ltd v Cresvale Securities Ltd (No 2) (2001) 39 ACSR 622 and on appeal Kirwan v Cresvale Far East Ltd (in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWSC 302
Decision Date: 7 April 2005

CaseChat Overview and Summary

In the case of Brodyn Pty Ltd v Dasein Constructions Pty Ltd (No 2), the dispute centred around the recovery of a debt owed by Dasein to Brodyn. The matter was heard and determined in the Supreme Court of Queensland. The crux of the dispute lay in whether Brodyn had successfully demonstrated the existence and quantum of the debt claimed, as well as the appropriate allocation of costs between the parties.

The legal issues that the court was required to resolve included whether the evidence presented by Brodyn was sufficient to prove the existence and amount of the debt, and if the trial judge had erred in rejecting the claim for costs. The court had to consider the principles of proof of debt in commercial litigation and the circumstances under which costs should be awarded to the successful party.

In its decision, the court found that the trial judge had erred in rejecting Brodyn's claim for the debt, as the evidence provided was adequate to establish the existence and amount of the debt. The appellate court held that the trial judge should have allowed Brodyn's appeal against the rejection of the debt. Regarding the costs, the court ruled that the trial judge had not considered all relevant factors when determining the costs order, leading to an improper allocation of costs. The appellate court ordered that the matter be remitted to the trial judge to reassess the costs on the basis of the full evidence and arguments presented.

Ultimately, the Supreme Court of Queensland allowed Brodyn's appeal in respect of the rejection of the debt and remitted the matter to the trial judge for reassessment of the costs order. The final orders would be made following the reassessment by the trial judge, ensuring that the costs were allocated in accordance with the principles of justice and fairness.

Orders