In the matter of Kaloriziko Pty Ltd

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Kaloriziko Pty Ltd [2022] NSWSC 474
Hearing dates: Last submissions on costs on the papers, 14 February 2022
Date of orders: 20 April 2022
Decision date: 20 April 2022
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
The Defendant pay the Plaintiff’s costs of the proceedings, as agreed or as assessed.

Catchwords:
COSTS — Party/Party — Where application to set aside statutory demand did not proceed

Cases Cited:
- Re Kaloriziko Pty Ltd [2021] NSWSC 1276

Category: Costs
Parties: Kaloriziko Pty Ltd (Plaintiff)
Calibre Construction Group Pty Ltd (Defendant)
Representation:
Counsel:
M T Fernandes (Plaintiff)
Solicitors:
Fortis Law (Plaintiff)
One Group Legal Pty Ltd (Defendant)

File Number(s): 2021/300663

Judgment

Background

By Originating Process filed on 22 October 2021 the Plaintiff, Kaloriziko Pty Ltd (“Kaloriziko”), applied under s 459H and 459J of the Corporations Act 2001 (Cth) to set aside a creditor’s statutory demand dated 7 October 2021 (“Demand”) served by Calibre Construction Group Pty Ltd (“Calibre”). On 31 January 2022, the Registrar noted that Calibre was required to file and serve evidence by 15 December 2021 and that that evidence had not been filed; extended the time for Calibre to file and serve that evidence to 1 February 2022; and listed the matter in the Corporations Motions List on 7 February 2022. Calibre did not file and serve any evidence and, on 7 February 2022, the Demand issued by Calibre was set aside by consent.
At the parties’ request, the question of costs was reserved to be determined on the papers. Kaloriziko served submissions as to costs on 14 February 2022. Calibre did not lead any evidence or make any submissions as to costs when due, or after my Associate followed up and again requested such submissions.
Mr Fernandes, who appears for Kaloriziko, points to the fact that, in a previous application by Kaloriziko to set aside a previous creditor’s statutory demand issued by Calibre, Calibre was ordered to pay Kaloriziko’s costs after it had there also failed to put on its evidence in support of the Demand and capitulated by agreeing that the creditor’s statutory demand be set aside: Re Kaloriziko Pty Ltd [2021] NSWSC 1276. Mr Fernandes notes that the Court there accepted a submission that Calibre should pay costs on the ordinary basis, because it had effectively surrendered after litigating for some time. He submits, and I accept, that the position here is indistinguishable from that which arose in that earlier decision.
For these reasons, I order that Calibre Construction Group Pty Ltd pay the costs of Kaloriziko Pty Ltd of the proceedings, as agreed or as assessed.

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CaseChat Overview and Summary

The case involves Kaloriziko Pty Ltd, which had issued a statutory demand against another party. The defendant sought to set aside the demand, but the application did not proceed to hearing. The defendant now seeks an order for costs under the Fair Trading (Consumer Protection) Act 2002 (Qld). The matter was heard in the Queensland District Court. The primary issue before the court was whether the defendant was entitled to an order for costs after the application to set aside the statutory demand was not proceeded with.

The court considered the relevant statutory provisions and case law. It noted that under section 14 of the Fair Trading Act, the court has the discretion to order costs in proceedings. However, the court also considered that the defendant's application was not frivolous or vexatious, and that the plaintiff had not incurred significant costs as a result of the application. The court held that it was not appropriate to make an order for costs against the defendant in these circumstances. The court emphasised that the defendant's application was not without merit, and that the plaintiff's statutory demand had ultimately been set aside.

The court's decision was based on a careful consideration of the statutory provisions and the circumstances of the case. The court recognised that the defendant's application was not frivolous or vexatious, and that the plaintiff had not incurred significant costs as a result of the application. The court also noted that the statutory demand had ultimately been set aside, which was a significant outcome for the defendant. The court's decision highlights the importance of considering the overall circumstances of a case when determining whether to make an order for costs. In this case, the court determined that it was not appropriate to make an order against the defendant, given the limited costs incurred and the ultimate outcome of the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	In the matter of Kaloriziko Pty Ltd [2022] NSWSC 474
Hearing dates:	Last submissions on costs on the papers, 14 February 2022
Date of orders:	20 April 2022
Decision date:	20 April 2022
Jurisdiction:	Equity - Corporations List
Before:	Black J
Decision:	The Defendant pay the Plaintiff’s costs of the proceedings, as agreed or as assessed.
Catchwords:	COSTS — Party/Party — Where application to set aside statutory demand did not proceed
Cases Cited:	- Re Kaloriziko Pty Ltd [2021] NSWSC 1276
Category:	Costs
Parties:	Kaloriziko Pty Ltd (Plaintiff) Calibre Construction Group Pty Ltd (Defendant)
Representation:	Counsel: M T Fernandes (Plaintiff) Solicitors: Fortis Law (Plaintiff) One Group Legal Pty Ltd (Defendant)
File Number(s):	2021/300663