FEDERAL COURT OF AUSTRALIA
Lamond (No 2) [2017] FCA 548
File number: SAD 333 of 2016 Judge: BESANKO J Date of judgment: 19 May 2017 Catchwords: COSTS – consideration of an application for costs of and incidental to orders sought in an Urgent application before start of a proceeding – where prospective applicant had sought, but subsequently abandoned, an application for interlocutory relief – whether the question of costs be reserved to the trial judge – whether costs be prospective respondents’ costs in the cause – where orders sought unlikely to be obtained in the circumstances.
PRACTICE AND PROCEDURE – consideration of an application for winding up on the just and equitable ground – where party contends that the applicant has made the application for a collateral purpose – where party contends that the applicant lacks clean hands – where allegations of misconduct also the subject of another related proceeding sought to be brought on behalf of the company – where winding up application requires consideration of material relevant to the related proceeding – where no authority for submission that a court may determine a lack of clean hands on a prima facie basis – where considerable overlap between the issues in both related proceedings – where both proceedings would require lengthy trials – whether consolidation of proceedings an appropriate course.
Legislation: Corporations Act 2001 (Cth) ss 237, 461, 467, 472
Federal Court Rules 2011 (Cth) r 7.01
Cases cited: Garden Mews-St Leonards Pty Ltd v Butler Pollnow Pty Ltd & Ors (1984) 9 ACLR 91
Gregor v British-Israel-World Federation [2002] NSWSC 12
Guerinoni v Argyle Concrete and Quarry Supplies Pty Ltd [2002] 34 ACSR 469
In the matter of Amazon Pest Control Pty Limited [2012] NSWSC 15
In the matter of Mudgee Dolomite & Lime Pty Limited [2016] NSWSC 1933
Kickers International SA v Paul Kettle Agencies Limited and Another [1990] FSR 436
Lamond [2017] FCA 180
ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270
Rafferty v Time 2000 West Pty Limited (No 3) [2009] FCA 727
Ruut v Head (1996) 20 ACSR 160
Singtel Optus Pty Limited v Vodaphone Pty Limited (No 2) [2011] FCA 260
Dates of hearing: 20 & 24 April 2017 Registry: South Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 28 Counsel for the Prospective Applicant: Mr C Munt Solicitor for the Prospective Applicant: Scanlon Carroll Pty Ltd Counsel for the First, Third, Fourth, Sixth, Eighth and Tenth Prospective Respondents: Mr R Ross-Smith Solicitor for the First, Third, Fourth, Sixth, Eighth and Tenth Prospective Respondents: DeGaris Lawyers Counsel for the Second and Fifth Prospective Respondents Mr T Duggan SC with Mr R Kennett Solicitor for the Second and Fifth Prospective Respondents Cowell Clark Commercial Lawyers Counsel for the Seventh and Ninth Prospective Respondents: The Seventh and Ninth Prospective Respondents did not appear ORDERS
SAD 333 of 2016 BETWEEN: PETER COLIN LAMOND
Prospective Applicant
AND: GREEN TRIANGLE LIVESTOCK & REAL ESTATE…
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- AGLC
- Lamond (No 2) [2017] FCA 548
- Case
- [2017] FCA 548
- Decision Date
CaseChat Overview and Summary
The court considered the legal issues regarding the appropriate consideration of an application for costs in such circumstances, where the orders sought were unlikely to be obtained. The court also examined the appropriateness of consolidating the winding up application with another related proceeding, which involved allegations of misconduct against the applicant and was sought to be brought on behalf of the company. The court noted that there was no authority for the submission that a court may determine a lack of clean hands on a prima facie basis, and that there was considerable overlap between the issues in both related proceedings.
The court found that the prospective applicant should pay the costs of certain respondents of and incidental to the paragraphs in the urgent application. The court held that the question of costs should be reserved for the trial judge and that if costs were to be awarded, they should be the respondents' costs in the cause. The court also considered the appropriateness of consolidating the winding up application with the related proceeding but did not make a final determination on consolidation.
The court made an order that the prospective applicant pay the costs of the first, third, fourth, sixth, eighth, and tenth prospective respondents of and incidental to certain paragraphs in the urgent application. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The prospective applicant pay the costs of the first, third, fourth, sixth, eighth and tenth prospective respondents of and incidental to paragraphs 5 and 6 of the applicant’s ‘Urgent application before start of a proceeding’ filed on 8 December 2016, paragraphs 5 and 6 of the applicant’s ‘Amended Urgent application before start of a proceeding’ filed on 9 December 2016 and paragraphs 5 to 10 of the applicant’s ‘Further Amended Urgent application before start of a proceeding’ filed on 13 January 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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