MSPR Pty Ltd v Advanced Braking Technology Ltd (No 2) - [2014] NSWCA 283

Court of Appeal

New South Wales

Case Title: MSPR Pty Ltd v Advanced Braking Technology Ltd (No 2)

Medium Neutral Citation: [2014] NSWCA 283

Hearing Date(s): On the papers

Decision Date: 25 August 2014

Before: Macfarlan JA
Ward JA
Gleeson JA

Decision:
(1) Leave is granted pursuant to s 500(2) of the Corporations Act to continue these appeal proceedings against the first appellant.

(2) Order pursuant to s 98(4)(c) of the Civil Procedure Act that the respondent is entitled to a specified gross sum in the amount of $260,848.87 in satisfaction of the costs orders in its favour at first instance and on appeal.

(3) Declare that the amount of $130,950.00 held on account of security for costs in the Trust Account of Holman Webb Lawyers is held on trust for the respondent to partially satisfy the costs orders made at first instance and on appeal.

(4) Order that Mr John Wakefield of Holman Webb Lawyers pay to the respondent the amount of $130,950.00 referred to in order (3) above.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE - costs - appellants ordered to pay appeal costs of respondent - respondent sought and obtained specified gross sum for costs - order made for payment to respondent of amount lodged as security for costs

PRACTICE AND PROCEDURE - Corporations Act s 500(2) - first appellant in liquidation - whether interests of justice favour grant of leave to respondent to continue proceedings - appeal proceedings near completion - leave granted

Cases Cited: Calderbank v Calderbank [1976] Fam 93
Distinctive FX 9 Pty Ltd v Statewide Developments Pty Ltd [2012] NSWCA 393
DSG Holdings Australia Pty Ltd v Helenic Pty Ltd [2014] NSWCA 96
Dwight v Commissioner of Taxation [1992] FCA 178; 37 FCR 178
Hamod v State of New South Wales [2011] NSWCA 375
Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 211

Category: Consequential orders

Parties: MSPR Pty Ltd (First Appellant)
Phyro Holdings Pty Ltd (Second Appellant)
Advanced Braking Technology Ltd (Respondent)

Representation

- Counsel: Counsel:
C Birch SC/T Lynch SC (Appellants)
I R Pike SC (Respondent)

- Solicitors: Solicitors:
Aitken Lawyers (Appellants)
Marque Lawyers (Respondent)

File Number(s): CA 2012/290296

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Knox SC DCJ

- Date of Decision: 22 August 2012

- Citation: MSPR Pty Ltd and Phyro Holdings Pty Ltd v Advanced Braking Technology Ltd [2012] NSWDC 140

- Court File Number(s): 2009/338826

JUDGMENT

THE COURT: On 9 December 2013 the Court dismissed MSPR Pty Ltd and Phyro Holdings Pty Ltd's appeal and ordered those companies to pay the appeal costs…

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: [2014] NSWCA 283
Decision Date: 25 August 2014

CaseChat Overview and Summary

In the matter of MSPR Pty Ltd v Advanced Braking Technology Ltd (No 2), the New South Wales Court of Appeal considered an application by the respondent for leave to continue appeal proceedings against the first appellant, which was in liquidation. The court also dealt with the respondent's entitlement to a specified gross sum for costs and the application of security lodged for those costs.

The primary legal issues before the Court of Appeal were whether the interests of justice favoured granting the respondent leave to continue the appeal proceedings against the first appellant, notwithstanding its liquidation, and how the costs orders made at first instance and on appeal, along with the security lodged for those costs, should be satisfied.

The Court granted leave pursuant to section 500(2) of the Corporations Act 2001 (Cth) to continue the appeal proceedings against the first appellant, finding that the interests of justice supported this course given the advanced stage of the appeal. The Court further ordered that the respondent was entitled to a specified gross sum of $260,848.87 in satisfaction of the costs orders. Finally, the Court declared that the amount of $130,950.00 held on account of security for costs was held on trust for the respondent and ordered its payment to the respondent to partially satisfy the outstanding costs.

Orders

Orders of the court

(1) Leave is granted pursuant to s 500(2) of the Corporations Act to continue these appeal proceedings against the first appellant.

(2) Order pursuant to s 98(4)(c) of the Civil Procedure Act that the respondent is entitled to a specified gross sum in the amount of $260,848.87 in satisfaction of the costs orders in its favour at first instance and on appeal.

(3) Declare that the amount of $130,950.00 held on account of security for costs in the Trust Account of Holman Webb Lawyers is held on trust for the respondent to partially satisfy the costs orders made at first instance and on appeal.

(4) Order that Mr John Wakefield of Holman Webb Lawyers pay to the respondent the amount of $130,950.00 referred to in order (3) above.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	MSPR Pty Ltd v Advanced Braking Technology Ltd (No 2)
Medium Neutral Citation:	[2014] NSWCA 283
Hearing Date(s):	On the papers
Decision Date:	25 August 2014
Before:	Macfarlan JA Ward JA Gleeson JA
Decision:	(1) Leave is granted pursuant to s 500(2) of the Corporations Act to continue these appeal proceedings against the first appellant. (2) Order pursuant to s 98(4)(c) of the Civil Procedure Act that the respondent is entitled to a specified gross sum in the amount of $260,848.87 in satisfaction of the costs orders in its favour at first instance and on appeal. (3) Declare that the amount of $130,950.00 held on account of security for costs in the Trust Account of Holman Webb Lawyers is held on trust for the respondent to partially satisfy the costs orders made at first instance and on appeal. (4) Order that Mr John Wakefield of Holman Webb Lawyers pay to the respondent the amount of $130,950.00 referred to in order (3) above. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - costs - appellants ordered to pay appeal costs of respondent - respondent sought and obtained specified gross sum for costs - order made for payment to respondent of amount lodged as security for costs PRACTICE AND PROCEDURE - Corporations Act s 500(2) - first appellant in liquidation - whether interests of justice favour grant of leave to respondent to continue proceedings - appeal proceedings near completion - leave granted
Cases Cited:	Calderbank v Calderbank [1976] Fam 93 Distinctive FX 9 Pty Ltd v Statewide Developments Pty Ltd [2012] NSWCA 393 DSG Holdings Australia Pty Ltd v Helenic Pty Ltd [2014] NSWCA 96 Dwight v Commissioner of Taxation [1992] FCA 178; 37 FCR 178 Hamod v State of New South Wales [2011] NSWCA 375 Summer Hill Business Estate Pty Ltd v Equititrust Ltd [2011] NSWCA 211
Category:	Consequential orders
Parties:	MSPR Pty Ltd (First Appellant) Phyro Holdings Pty Ltd (Second Appellant) Advanced Braking Technology Ltd (Respondent)
Representation
- Counsel:	Counsel: C Birch SC/T Lynch SC (Appellants) I R Pike SC (Respondent)
- Solicitors:	Solicitors: Aitken Lawyers (Appellants) Marque Lawyers (Respondent)
File Number(s):	CA 2012/290296
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Knox SC DCJ
- Date of Decision:	22 August 2012
- Citation:	MSPR Pty Ltd and Phyro Holdings Pty Ltd v Advanced Braking Technology Ltd [2012] NSWDC 140
- Court File Number(s):	2009/338826