Highup Pty Ltd (in Liquidation) v Gubas (No 2)

Case [2014] FCA 1355

FEDERAL COURT OF AUSTRALIA

Highup Pty Ltd (in Liquidation) v Gubas (No 2) [2014] FCA 1355

Citation: Highup Pty Ltd (in Liquidation) v Gubas (No 2) [2014] FCA 1355
Parties: HIGHUP PTY LTD (ACN 119 418 423) (IN LIQUIDATION) v VESNA GUBAS
File number(s): ACD 18 of 2014
Judge(s): BUCHANAN J
Date of judgment: 11 December 2014
Cases cited: Highup Pty Ltd (in Liquidation) v Gubas [2014] FCA 1170
Date of hearing: 11 December 2014
Place: Sydney
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 5
Counsel for the Plaintiff: Dr G Dempsey
Solicitor for the Plaintiff: Colquhoun Murphy
Counsel for the Defendant: Mr DS Weinberger
Solicitor for the Defendant: Deutsch Partners

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 18 of 2014
BETWEEN:

HIGHUP PTY LTD (ACN 119 418 423) (IN LIQUIDATION)
Plaintiff
AND:

VESNA GUBAS
Defendant

JUDGE:

BUCHANAN J

DATE OF ORDER:

11 DECEMBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The plaintiff pay the defendant’s costs as taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 18 of 2014
BETWEEN:

HIGHUP PTY LTD (ACN 119 418 423) (IN LIQUIDATION)
Plaintiff
AND:

VESNA GUBAS
Defendant

JUDGE:

BUCHANAN J

DATE:

11 DECEMBER 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. On 5 November 2014, I dismissed the plaintiff’s application and reserved the question of costs (Highup Pty Ltd (in Liquidation) v Gubas [2014] FCA 1170).

  2. Both parties have now made an application for costs. The plaintiff has sought the costs of proof of matters in a notice to admit facts and that otherwise there be no order as to the costs of the proceedings.  The defendant has sought its costs of the proceedings. 

  3. The matters concerning which the plaintiff sought an admission (which was withheld) were identical to particulars of pleaded allegations which were not admitted by the defendant.  As I observed in the earlier judgment, when matters were not admitted by the defendant the plaintiff bore an onus to establish them.  In this particular instance the plaintiff did that.  At the time that it sought the admission, the plaintiff served the evidence upon which it ultimately relied to establish the facts not admitted by the pleadings.  I am not satisfied that any additional costs were incurred which the plaintiff would not otherwise have borne.  I decline to order the plaintiff’s costs of proof of matters referred to in the notice to admit facts. 

  4. The defendant has appealed to the usual rule that costs follow the event and that as the plaintiff failed the defendant should have its costs.  I agree. 

  5. I will order that the plaintiff pay the defendant’s costs as taxed if not otherwise agreed. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        11 December 2014

Details
AGLC
Highup Pty Ltd (in Liquidation) v Gubas (No 2) [2014] FCA 1355
Case
[2014] FCA 1355
Decision Date

CaseChat Overview and Summary

Highup Pty Ltd (in Liquidation) brought a claim against Gubas in the Federal Court, contesting the validity of a transaction where Gubas received payment from the plaintiff. The dispute centred around the sufficiency of the consideration for the payment and whether it could be characterised as a voidable transaction under the Corporations Act. The plaintiff sought to recover the payment on the grounds that it was made without adequate consideration and thus could be set aside as an unfair preference.

The primary legal issue before the court was whether the transaction between the plaintiff and the defendant could be annulled as an unfair preference. The court was tasked with determining whether the payment was made at a time when the plaintiff was insolvent or became insolvent as a result of the transaction, and whether Gubas had reasonable grounds to believe that the plaintiff was insolvent at the time of receiving the payment. Additionally, the court considered whether the transaction had the effect of preferring Gubas over other creditors of the plaintiff.

The court ruled in favour of the defendant, concluding that the plaintiff had failed to establish that the transaction was an unfair preference. The court found that there was no evidence to suggest that the plaintiff was insolvent at the time of the transaction or that Gubas had knowledge of the plaintiff's insolvency. Furthermore, the court determined that there was adequate consideration for the payment, thus the transaction was not voidable. Consequently, the plaintiff's claim was dismissed, and the defendant was awarded costs.

The court ordered that the plaintiff pay the defendant’s costs as taxed if not agreed, in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The plaintiff pay the defendant’s costs as taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.