Clifton (Liquidator) v Kerry J Investment Pty Ltd trading as Clenergy (No 2)

In this case, the liquidators of Solar Shop Australia Pty Ltd, Timothy James Clifton and Mark Christopher Hall, appealed against Kerry J Investment Pty Ltd, SMA Solar Technology AG, and Wuxi Suntech Power Co, Limited in relation to the insolvency date of Solar Shop. The liquidators sought to recover payments made to the respondents as unfair preferences under the Corporations Act 2001 (Cth). The primary judge found that Solar Shop became insolvent on 31 July 2011, which impacted the liquidators' claims as it eliminated 13 payments made prior to this date. Both the liquidators and the respondents filed appeals and cross-appeals regarding this finding.

The court had to determine the appropriate costs for the appeals and cross-appeals, considering the liquidators' failure to make proper discovery. The court recognised the liquidators' unsuccessful attempts to establish an earlier date of insolvency and the respondents' success in reducing their potential liability. The court found that the liquidators should pay 75% of the respondents' costs for the cross-appeals on a party and party basis. The court also ruled that the liquidators must pay Kerry J's costs of the appeal and ground 1A of the cross-appeal on an indemnity basis.

The court issued the following orders: (1) The liquidators must pay Kerry J's costs of the appeal and ground 1A of the cross-appeal on an indemnity basis. (2) The liquidators must pay 75% of Kerry J's costs of grounds 1 to 5 inclusive of the cross-appeal on a party and party basis. (3) The court set aside a previous order and replaced it with a new order for the liquidators to pay the respondents' costs of the separate question on a party and party basis.