Cawthorn, D.S. as Liquidator of Thermatec P/L v McCowatt, H.F.

[1994] FCA 434

439       'ict

JUDGMENT No. k

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 3018 of 1994

)

GENERAL DIVISION 1

BFIWEBH: DAVID SAXBY CAWTHORN as Liquidator o f THERMATEC PTY LIMITED (IN LIQUIDATION)

Applicant

AUD:  MlGH FRASER MeCOWATT

First Respondent

LILA ANN MeCOWATT

Second Respondent

C O W :	FOSTER J
DATE:	11 MARCH 1994
P W :	SYDNEY

12 JUL 1994

-

- (Extempore)

HIS HQHOUR: The Court has before it a notice of motion dated

There is, in fact, no contest that the notice of motion must succeed. The main proceedings have not been	brought by a liquidator claiming damages pursuant to section
592 of the corporations law. It is properly conceded that the applicant, as liquidator, has no standing under the statute to bring that action.
The only question before the Court in those circuulstances is the question of an appropriate cost order. The respondents, as the applicants in the motion, seek that an order be made that the respondent to the motion, the applicant in the main proceedings, pay costs on an indemnity or at least on a solicitor/client basis.

7 Wrch 1994 seeking that the application, taken out by the applicant liquidator in the main proceedings, be dismissed and the statement of claim be struck out. The notice of motion also seeks an order that the applicant pay the respondent's

costs of the proceedinge.

This application is based upon material put before

e	Court by way of an affidavit on the solicitor for the
,	\ +
re-ndents	indicating that when the application was served,

;\

;	Xt was brought to the attention of the solicitor for the
,	,

. :I ' applicant liquidator, that the liquidator had no standing to

\ , bring the action and indicating that in the event of the

application not being withdrawn, a motion would be taken out

that it be dismissed.

It appears that a period in excess of a week was allowed to go by before the solicitor for the liquidator satisfied himself as to the correctness of the matter raised by the respondent's solicitors in relation to the standing of the liquidator. By the time that he formed the view that that approach was, in fact, correct, the motion had been taken out and costs incurred. Thereafter, it is apparent that the solicitor for the liquidator sought, so far as possible, to

contain further costs by, in fact, acceding to the proposition that the motion must necessarily succeed and also offering to appear and indicate that fact to the Court without the further costs of an appearance by the parties being incurred.

I have to conaider whether anything other than the ordinary coat order is appropriate in the circumstances. It in, of course, unfortunate that costs were incurred ae a result of the solicitor for the liquidator not reacting within the time set by the respondent8e solicitors in their first letter. However, I have to consider whether there has been domomtrated anything that one could call contumelious or high handed, to the extent that it would require that the Court visit upon the applicant liquidator, more than the ordinary order for costs.

The matter hae been very fully argued before me but I m, in the ultimate, not dissuaded that anything other than the ordinary coat order ie appropriate in this matter and that is the order that will be made. It is worth noting that the

motion itself makes no claim for anything other than the	ordinary costs order. Accordingly I dismiee the proceedings
and I direct that the applicant pay the reepondentle coete in accordance with order two eought in the notice of motion and direct that thoee coete be taxed if not agreed.

I certify that the preceding three (3) pages are a true copy of the reasone for judpent herein of the Honourable Hr Justice M. L. Foster.

V

Date :	11 MARCH 1994
A P P E A R A N C E S

SOLICITOR FOR THE APPLICANT:	KR S. BEVERLY
INSTRUCTED BY:	STEVEN BBVERLY L ASSOCIATES
COUNSEL FOR THE RESPONDENT:	MS V. SONEGO

INSTRUCTED BY:	CLAYTON U T Z
DATE OF HEARING:	11 MARCH 1994
DATE OF JUDGMENT:	11 MARCH 1994

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTR WALES DISTRICT REGISTRY )	No. NG 3018 of 1994

1

GENERAL DIVISION 1

BE'HBEHt DAVID SMBY CAWTHORN

as Liquidator o f THERMATEC PTY LIMITED (IN LIQUIDATION)

Applicant

AUD:  HUGH FRASER MeCOWATT

First Respondent

LILA ANN MCCOWATT

Second Reapondent

W M t	POSTER J
DA!rEr	11 lIARCH 1994

PLACE: SYDNEY

1.    the proceedings be diemieeed.

2.   the applicant pay the respondentem coete in accordance with order two sought in the notice of motion and direct that thoee coete be taxed if not agreed.

&&Q:  Settlement and entry of ordere ie dealt with in
Order 36 of the Federal Court Rules.