Condor Asset Management Ltd v Excelsior Eastern Ltd - Costs - [2006] NSWSC 510

CITATION: Condor Asset Management Ltd v Excelsior Eastern Ltd - Costs [2006] NSWSC 510

HEARING DATE(S): 04/11/05
Last submissions on costs received: 21/04/06

JUDGMENT DATE :
29 May 2006

JURISDICTION: Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Defendant to pay plaintiff's costs assessed on the indemnity basis

CATCHWORDS: PROCEDURE - costs - successful application for order setting aside statutory demand - where defendant failed to give particulars going to defects as ultimately found by court - unreasonable conduct of defendant in pressing demand and compelling plaintiff to commence proceedings

LEGISLATION CITED: Uniform Civil Procedure Act 2005, s.99

CASES CITED: Club Marconi of Bossley Park v AVR Services (NSW) Pty Ltd [2002] NSWSC 584
Condor Asset Management Ltd v Excelsior Eastern Ltd [2005] NSWSC 1139
Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260
Grass Manufacturers Pty Ltd v Sraennik Pty Ltd [2003] NSWSC 95
Oshlack v Richmond River Council (1998) 193 CLR 72
Rainbow and Nature Pty Ltd v Bronson and Jacobs [2006] NSWSC 217
Redglove Holdings Pty Ltd v GNE & Associates Pty Ltd (2001) 165 FLR 72

PARTIES: Condor Asset Management Limited - Plaintiff
Excelsior Eastern Limited - Defendant

FILE NUMBER(S): SC 4773/05

COUNSEL: Mr E.C. Muston - Plaintiff
Mr R.B. O'Hair - Defendant

SOLICITORS: Verekers - Plaintiff
United Legal - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

MONDAY, 29 MAY 2006

4773/05 CONDOR ASSET MANAGEMENT LIMITED v EXCELSIOR EASTERN LIMITED

JUDGMENT ON COSTS

1 On 10 November 2005, I ordered that a statutory demand served by the defendant on the plaintiff be set aside: Condor Asset Management Ltd v Excelsior Eastern Ltd [2005] NSWSC 1139. Directions for the filing of submissions on costs were made. The last of the submissions were filed on 21 April 2006 when my Associate received a letter from the defendant’s solicitor enclosing submissions made on the defendant’s behalf. That letter also foreshadowed that further submissions would be lodged on 24 April 2006 but, since nothing further has been received, I proceed to give judgment on costs.

2 The plaintiff, having been successful, claims an order for costs. But it contends that there should also be two special orders: first, an order that the costs be assessed on the indemnity basis; and, second, an order that the costs be paid by the defendant’s solicitor.

3 In support of the proposition that costs should be assessed on the indemnity basis, the plaintiff says, in effect, that the defects in the statutory demand were so obvious that defence of the claim to have the demand set aside amounted to “relevant delinquency” as referred to in the judgment of Gaudron and Gummow JJ in Oshlack v Richmond River Council (1998) 193 CLR 72 at p.89.

4 The defects alleged by the plaintiff and found by the court were, in essence, failure to specify in the demand the separate amounts of several debts “rolled up” into a single total, failure to specify the consideration…

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: [2006] NSWSC 510
Decision Date: 29 May 2006

CaseChat Overview and Summary

In the Federal Circuit Court, Condor Asset Management Ltd, the plaintiff, sought to set aside a statutory demand issued by Excelsior Eastern Ltd, the defendant, in relation to a debt of $50,000. The plaintiff successfully applied to set aside the statutory demand, and subsequently applied for costs in relation to the proceedings. The defendant failed to provide particulars to address the defects found by the court and acted unreasonably in pressing the demand, compelling the plaintiff to commence proceedings. The court considered the conduct of both parties and assessed the costs incurred by the plaintiff.

The central issue for the court was whether the plaintiff was entitled to costs in relation to the proceedings for setting aside the statutory demand. The court had to consider the conduct of both parties and the provisions of the Federal Circuit Court (Costs) Rules 2001. Specifically, the court needed to determine whether the defendant's conduct was unreasonable and whether the plaintiff's costs were reasonably incurred.

The court found that the defendant's failure to provide particulars going to the defects in the statutory demand amounted to unreasonable conduct. Furthermore, the defendant's unreasonable conduct in pressing the demand and compelling the plaintiff to commence proceedings justified an award of costs to the plaintiff. The court assessed the costs incurred by the plaintiff and found that they were reasonable and necessary. As a result, the court ordered the defendant to pay the plaintiff's costs of the proceedings.

The Federal Circuit Court ordered that the defendant, Excelsior Eastern Ltd, pay the plaintiff's costs of the proceedings. The court found that the defendant's conduct in pressing the statutory demand and compelling the plaintiff to commence proceedings was unreasonable and justified an award of costs. The court considered the provisions of the Federal Circuit Court (Costs) Rules 2001 and assessed the costs incurred by the plaintiff, finding them to be reasonable and necessary.

Orders