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Mundi v Hesse

Mundi v Hesse

Case [2018] NSWSC 1548 15 October 2018

Interlocutory Orders

Costs

Commercial Law

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Supreme Court

New South Wales

Medium Neutral Citation: Ruma Mundi & Anor v John Peter August Hesse & Ors [2018] NSWSC 1548
Hearing dates: 26 September 2018
Decision date: 15 October 2018
Jurisdiction: Equity
Before: Rees J
Decision:
Motion to appoint provisional liquidator dismissed

Catchwords:
CORPORATIONS — Motion for appointment of provisional liquidator brought on the basis of Termination Letter issued by third party – Termination Letter later withdrawn – Sole basis for Motion no longer exists – Motion dismissed.
COSTS —Costs orders in interlocutory proceedings —Whether departure from starting point in r 42.7 UCPR warranted — Costs forthwith — indemnity costs.
Legislation Cited: Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005
High Court Rules 1952 (Cth)
Cases Cited: Nichols v NSW Agribusiness Pty Ltd [2018] NSWCA 84
Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Metlife Insurance Ltd v Visy Board Pty Ltd (Costs) [2008] NSWSC 111
ACN 116 149 092 Pty Ltd v Coopers Brewery Limited [2006] FCA 1119
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Fordyce v Fordham (2006) 67 NSWLR 497
Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84
Shellharbour City Council v Minister for Local Government [2017] NSWCA 256
One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548
Welzel & Anor v Francis (2010) NSWLR 92
Fiduciary Ltd V Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Oshlack v Richmond River Council (1998) 193 CLR 72
Category: Procedural and other rulings
Parties: Ruma Mundi - First Plaintiff
NRM Premier Holdings Pty Ltd as trustee for the Mundi Family Trust - Second Plaintiff
John Peter August Hesse - First Defendant
Michelle Alice Hesse - Second Defendant
Quakers First National Pty Ltd - Fifth Defendant
Representation:
Counsel:
C N Bova - Plaintiffs
D Pritchard SC with L Beange - First, Second and Fifth Defendants
Solicitors:
Marque Lawyers - Plaintiffs
Foulsham & Geddes - First, Second and Fifth Defendants

File Number(s): 2018/116836

Judgment

HER HONOUR: This is an application to adjourn a motion to appoint a provisional liquidator or, failing that, for an appropriate costs order to be made on dismissal of the motion.

The substantive proceedings

The first plaintiff, Ms Mundi, together with her company, the second plaintiff, NRM Premier Holdings Pty Ltd (NRM), operated a real estate business as a franchisee of Century 21. They are the applicants on the motion.
The first and second defendants, Mr and Mrs Hesse, together with their company the fifth defendant, Quakers First National Pty Ltd (Quakers), operated a real estate business at Quakers Hill as a member of the First National Group of Independent Real Estate Agents Ltd (First National). They are the respondents on the motion.
In 2016, Ms Mundi and Mr and Mrs Hesse agreed to merge their real estate businesses, with the merged business to trade as “First National Hills Direct”. Two companies were formed to conduct the merged business, being the third defendant, Hills Direct Administration Pty Ltd (HDA), and the…

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.

Continue reading Mundi v Hesse

Details

AGLC: Mundi v Hesse [2018] NSWSC 1548
Case: [2018] NSWSC 1548
Decision Date: 15 October 2018

CaseChat Overview and Summary

Mundi brought an application for the appointment of a provisional liquidator of Hesse, on the basis of a Termination Letter issued by a third party. Hesse subsequently withdrew the Termination Letter, and Mundi's application became moot. Hesse brought an application for costs. The court had to determine whether the costs order made by the primary judge was appropriate. The court had to decide whether the primary judge was correct to order that Mundi pay Hesse's costs forthwith and on an indemnity basis.

The court held that the primary judge's orders were appropriate. The court held that the primary judge was not required to have regard to the starting point in rule 42.7 of the Uniform Civil Procedure Rules 2005 (NSW). The court held that the primary judge was entitled to order that Mundi pay Hesse's costs forthwith and on an indemnity basis. The court held that the primary judge was correct to find that Mundi had acted unreasonably in continuing with the application for the appointment of a provisional liquidator once the Termination Letter had been withdrawn. The court held that the primary judge was entitled to find that Hesse's costs were excessive, and that the orders made by the primary judge were appropriate in all the circumstances.

The court dismissed Mundi's appeal and affirmed the orders made by the primary judge. The court held that Mundi was to pay Hesse's costs of the appeal forthwith and on an indemnity basis.

Orders