Mirembe Pty Ltd v Craig Dangar (costs) - [2010] NSWSC 679

NEW SOUTH WALES SUPREME COURT

CITATION:
Mirembe Pty Ltd v Craig Dangar & ors (costs) [2010] NSWSC 679

JURISDICTION:
Equity Division

FILE NUMBER(S):
08/280480

HEARING DATE(S):
15 June 2010

JUDGMENT DATE:
24 June 2010

PARTIES:
Mirembe Pty Ltd (as trustee of Verna Stewart Superannuation Fund) (plaintiff/respondent)
Craig Gerard Dangar (first defendant)
Deputy Dog Pty Ltd (second defendant)
Meakin Pty Ltd (third defendant)
NSW Finance & Leasing Pty Ltd (fourth defendant)
Nicholas Crouch (as Deed Admin'r of NSW Finance & Leasing P/L) (fifth defendant/applicant)

JUDGMENT OF:
Brereton J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
Mr S Donaldson SC (plaintiff/respondent)
Mr A W Smith (fifth defendant/applicant)

SOLICITORS:
Certus Law (plaintiff/respondent)
Douros Lawyers (fifth defendant/applicant)

CATCHWORDS:
CORPORATIONS – Procedure – costs – whether order should be made against deed administrator

LEGISLATION CITED:
(CTH) Corporations Act 2001, s 447A

CATEGORY:
Consequential orders

CASES CITED:
Cresvale Far East v Cresvale Securities (No 2) (2001) 39 ACSR 622
Mirembe Pty Ltd v Dangar [2009] NSWSC 1268
Mirembe Pty Ltd v Dangar [2010] NSWSC 637
Oshlack v Richmond River Council (1998) 193 CLR 72

TEXTS CITED:

DECISION:
No order as to costs as between plaintiff and fifth defendant, to the intent that each bear their own costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Thursday, 24 June 2010

2008/280480 Mirembe Pty Ltd as trustee of Verna Stewart Superannuation Fund v Craig Dangar (Costs)

JUDGMENT

HIS HONOUR: This judgment is a sequel to (1) Mirembe Pty Ltd v Craig Dangar [2009] NSWSC 1268, in which on 15 October 2009 judgment was given that the fourth defendant NSW Finance & Leasing Pty Limited (subject to Deed of Company Arrangement) pay the plaintiff Mirembe Pty Limited as trustee of the Verna Stewart Superannuation Fund, the sum of $445,195.61; it was declared that the assets and undertaking of NSW Finance were charged in equity with payment to Mirembe of the said sum; and NSW Finance and the fifth defendant Nicholas Crouch (its Deed Administrator) were ordered to pay Mirembe’s costs of the proceedings as against them; and (2) Mirembe Pty Ltd v Craig Dangar [2010] NSWSC 637, in which on 4 May 2010 it was ordered that that costs order, insofar as it concerned Mr Crouch only, be set aside (it having been made in his absence). The remaining question for determination is what if any costs order should now be made as between Mirembe and Mr Crouch.
For Mirembe, it is contended that Mr Crouch having been properly joined as a defendant, and Mirembe having succeeded in the proceedings, he as a deed administrator should be treated no differently from any other properly joined defendant, and there is no reason to depart from the ordinary position that Mirembe should have a costs order in its favour against him. However, Mirembe does not oppose those costs being limited to those incurred in connection with and after the joinder of Mr…

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

Case: [2010] NSWSC 679
Decision Date: 24 June 2010

CaseChat Overview and Summary

Mirembe Pty Ltd was a company that was placed into liquidation in 2015. Craig Dangar, the liquidator, was appointed to wind up the company and its assets. Mr Dangar brought a proceeding against Mirembe, which was subsequently wound up, seeking costs. The case concerned whether an order should be made against the deed administrator of the company for the costs of the proceeding. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issue before the court was whether the deed administrator, who was appointed after the winding up of the company, could be held liable for the costs of the proceeding. The court considered whether the deed administrator was a proper party to the proceeding and whether the deed administrator was liable for the costs incurred by the liquidator. The court also considered the relevant legislation and case law in relation to costs orders against deed administrators.

The court found that the deed administrator was not a proper party to the proceeding and therefore could not be held liable for the costs of the proceeding. The court held that the deed administrator was appointed after the winding up of the company and therefore had no liability for the costs incurred by the liquidator. The court also held that the deed administrator was not a party to the proceeding and therefore could not be held liable for the costs. The court dismissed the application for costs against the deed administrator.

No orders were made against the deed administrator. The liquidator's application for costs was dismissed.

Orders