Matrix Group Ltd (in liq) (Trustee) v Oates, in the matter of Matrix Group Ltd (in liq) (Trustee) (No 2)

[2017] FCA 103

FEDERAL COURT OF AUSTRALIA

Matrix Group Ltd (in liq) (Trustee) v Oates, in the matter of Matrix Group Ltd (in liq) (Trustee) (No 2) [2017] FCA 103

File number:	NSD 1507 of 2016
Judge:	GLEESON J
Date of judgment:	16 February 2017
Catchwords:	COSTS – no reason to depart from the ordinary rule that costs should follow the event
Date of hearing:	10 November 2016
Date of last submissions:	30 January 2017 (Plaintiff) 1 February 2017 (Defendant)
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Plaintiffs:	Mr R Scruby
Solicitor for the Plaintiffs:	Kemp Strang
Counsel for the Defendant/Cross-Claimant:	The defendant/cross-claimant appeared in person
Counsel for the Third Cross-Respondent:	Mr M Izzo
Solicitor for the Third Cross-Respondent:	Sparke Helmore

ORDERS

NSD 1507 of 2016

IN THE MATTER OF MATRIX GROUP LIMITED (IN LIQUIDATION) ACN 061 549 371 AS TRUSTEE FOR THE MATRIX FINANCE GROUP UNIT TRUST

BETWEEN:

MATRIX GROUP LIMITED (IN LIQUIDATION) ACN 061 549 371 AS TRUSTEE FOR THE MATRIX FINANCE GROUP UNIT TRUST

First Plaintiff

SCOTT DARREN PASCOE IN HIS CAPACITY AS LIQUIDATOR OF MATRIX GROUP LIMITED (IN LIQUIDATION) AS TRUSTEE FOR THE MATRIX GROUP UNIT TRUST

Second Plaintiff

AND:

TOM MICHAEL OATES

Defendant

AND BETWEEN:

TOM MICHAEL OATES

Cross-Claimant

AND:

MATRIX GROUP LIMITED (IN LIQUIDATION) ACN 061 549 371 AS TRUSTEE FOR THE MATRIX FINANCE GROUP UNIT TRUST (and another named in the Schedule)

First Cross-Respondent

SCOTT DARREN PASCOE IN HIS CAPACITY AS LIQUIDATOR OF MATRIX GROUP LIMITED (IN LIQUIDATION) AS TRUSTEE FOR THE MATRIX FINANCE GROUP UNIT TRUST (and another named in the Schedule)
Second Cross-Respondent

JUDGE:	GLEESON J
DATE OF ORDER:	16 FEBRUARY 2017

THE COURT ORDERS THAT:

1.The plaintiffs pay the defendant’s legal costs and disbursements of and incidental to the hearing on 10 November 2016.

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

REASONS FOR JUDGMENT

GLEESON J:

1. On 10 November 2016, I heard argument of four separate questions and on the parties’ claims for relief consequent upon the answers to those questions. On 13 December 2016, I handed down my judgment in Matrix Group Ltd (in liq) (Trustee) v Oates, in the matter of Matrix Group Ltd (in liq) (Trustee) [2016] FCA 1487 and made directions for submissions on the question of costs.

2. The plaintiffs submit that there should be no order as to costs, or alternatively that each party pay his or its own costs of and incidental to the hearing of 10 November 2016.

3. Mr Oates argues that the plaintiffs should pay his costs and expenses in connection with the proceeding to date, including the 10 November 2016 hearing.

4. In support of their proposed orders, the plaintiffs argued that:

   (1)each party had a measure of success and failure on the matters decided by the 13 December 2016 judgment. In particular, the plaintiffs succeeded on separate question (d);

   (2)the proceedings were made necessary by Mr Oates in that, although the Harbour Funding Agreement was approved by Matrix’s creditors (including Mr Oates), it contained the condition precedent by reason of which Mr Oates was a necessary party.

5. Mr Oates was successful in resisting the plaintiffs’ application. That application sought, in substance, to obtain a direction or order meeting the requirements of the condition precedent to the operation of the Harbour Funding Agreement. I do not consider that Mr Oates’ failure on separate question (d) warrants a departure from the ordinary rule that, in the absence of special circumstances, costs should follow that event.

6. Accepting that the liquidator had no practical alternative but to bring the proceedings, and to join Mr Oates as a proper party, these considerations do not warrant a departure from the ordinary rule.

7. Accordingly, I will make an order that the plaintiffs pay Mr Oates’ legal costs and disbursements of and incidental to the hearing of 10 November 2016. I will not make the order “in connection with the proceeding to date”, as proposed by Mr Oates, because the proceeding involves unresolved claims that extend beyond the scope of the further amended originating process by reason of Mr Oates’ cross-claim.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.

Associate:        

Dated:        16 February 2017

SCHEDULE OF PARTIES

NSD 1507 of 2016
Cross-Respondents
Third Cross-Respondent:	THE PARTNERS OF KEMP STRANG