Joubert in his capacity as liquidator of Barry Ling Pty Ltd (in Liquidation) v Allan Jones (No 3) - [2013] NSWSC 573

Supreme Court

New South Wales

Medium Neutral Citation: Joubert in his capacity as liquidator of Barry Ling Pty Ltd (in Liquidation) v Allan Jones (No 3) [2013] NSWSC 573
Hearing dates: 16 May 2013
Decision date: 16 May 2013
Before: McCallum J
Decision:
The liquidator's application for orders 1 to 3 in the notice of motion filed 16 April 2013 is refused

Catchwords: PROCEDURE - judgments and orders - amending, varying and setting aside - costs - plaintiff's application to have costs orders made in Local Court set aside and costs orders entered in this Court varied to reflect decision on appeal - whether power under slip rule - whether appropriate in circumstances to exercise discretion
Legislation Cited: Corporations Act 2001 (Cth)
Cases Cited: J Aron Corp v Newmont Yandal Operations [2006] NSWSC 849; (2006) 202 FLR 359 Joubert in his capacity as liquidator of Barry Ling Pty Ltd (in Liquidation) v Allan Jones [2013] NSWSC 280
Newmont Yandal Operations Pty Ltd v J Aron Corp [2007] NSWCA 195; (2007) 70 NSWLR 411
Category: Procedural and other rulings
Parties: Randall Joubert (plaintiff)
Allan Jones (first defendant)
Jacqueline Jones (second defendant
Representation: Counsel:
S Golledge (plaintiff)
R Marshall (defendants)
Solicitors:
Polczynski Lawyers (plaintiff)
Bartier Perry (first defendant)
Jacqueline Jones (second defendant)

File Number(s): 2013/12643
Publication restriction: None

Judgment

This is an appeal from a decision of the Local Court. The appeal was heard and determined by me earlier this year: see Joubert in his capacity as liquidator of Barry Ling Pty Limited (in Liquidation) v Jones [2013] NSWSC 280.

Shortly after publication of that judgment the liquidator, in correspondence with the defendants, raised two matters for correction under the slip rule. One was undoubtedly properly categorised as a slip and its correction is not opposed. The other is in contest, both as to whether the Court has power to make the order sought and as to whether any discretion to do so should be exercised in favour of the liquidator.

In the proceedings in the Local Court, the liquidator sought to recover a payment of $70,000 made by the insolvent company in discharge of a debt owed by the principal of the company, Mr Barry Ling, and his wife, Ms Debra Roberts. The defendants are Ms Roberts' parents, Mr Allan Jones and Mrs Jacqueline Jones.

It was not disputed that the transaction was voidable under s 588FE of the Corporations Act 2001 (Cth). The only issue raised for the Court's determination was whether the defendants had established a defence under s 588FG. The learned magistrate held in favour of the defendants.

The liquidator appealed against the verdict in favour of each defendant. However, at the outset of the hearing of the appeal before me, the liquidator stated that he no longer wished to disturb the verdict in favour of Mr Jones. Accordingly, the appeal as against him stood to be dismissed by consent.

I allowed the appeal against the verdict in favour of Mrs Jones. The parties are…

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

AGLC: Joubert in his capacity as liquidator of Barry Ling Pty Ltd (in Liquidation) v Allan Jones (No 3) [2013] NSWSC 573
Case: [2013] NSWSC 573
Decision Date: 16 May 2013

CaseChat Overview and Summary

The case involves the liquidator of Barry Ling Pty Ltd, Joubert, who brought an action in the Local Court against Allan Jones. The dispute pertains to the liquidator's application to set aside costs orders made in the Local Court and to vary the costs orders in the Supreme Court. The application was based on the liquidator's successful appeal against a decision made in the Local Court.

The legal issues before the court were whether the liquidator had the power to seek a variation of costs orders under the relevant slip rule and whether it was appropriate to exercise the discretion to vary the costs orders in light of the appeal's outcome. The court considered the principles of costs in litigation and the appropriate exercise of discretion in varying costs orders.

The court held that the liquidator had the power to apply for a variation of the costs orders under the slip rule. However, the court also considered whether it was appropriate to exercise the discretion to vary the costs orders. The court noted that the liquidator's appeal was successful, and the Local Court had made an error in law. The court found that it was appropriate to exercise the discretion to vary the costs orders to reflect the outcome of the appeal. The court ordered that the costs orders made in the Local Court be set aside and that new costs orders be entered in the Supreme Court.

The court's decision highlights the importance of ensuring that costs orders accurately reflect the outcome of litigation and the appropriate exercise of discretion in varying costs orders. The liquidator's successful appeal and the Local Court's error in law were key factors in the court's decision to vary the costs orders. The court's decision provides guidance to litigants and their lawyers on the principles of costs in litigation and the appropriate exercise of discretion in varying costs orders.

Orders