National Australia Bank Ltd v Horne

[2011] VSCA 414

SUPREME COURT OF VICTORIA

COURT OF APPEAL

NATIONAL AUSTRALIA BANK LTD (ABN 12 004 044 937) and CAPITAL FINANCE AUSTRALIA LTD

(ABN 23 069 663 136)

S APCI 2010 0147

Appellants

v

STIRLING LINDLEY HORNE AND PETR VRSECKY (IN THEIR CAPACITIES AS JOINT AND SEVERAL ADMINISTRATORS OF AUSTRALIAN PROPERTY CUSTODIAN HOLDINGS LIMITED 

(ACN 095 474 436) (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED)) (NO 2)

Respondents

---

JUDGES	BUCHANAN and MANDIE JJA and ALMOND AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	6 June 2011
DATE OF JUDGMENT	21 September 2011
DATE OF ORDER:	8 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 414
JUDGMENT APPEALED FROM	[2010] VSC 492 (Sifris J)

---

COSTS – Substantial success by both sides – No order as to costs.

---

Appearances:	Counsel	Solicitors
For the Appellants	Mr R C Newlinds SC with Mr D R Sulan	Clayton Utz
For the Respondents	Mr A J Myers, AO, QC with Dr A P Trichardt	Cornwall Stodart

BUCHANAN JA
MANDIE JA
ALMOND AJA:

1. The appellants were successful in this appeal in that they established that the trial judge erred in finding that the company would have appointed Horne and Vrsecky as administrators. The respondents were successful in persuading this Court to validate the appointment of the administrators pursuant to the provisions of s 447A of the Act.

1. Both the appellants and the respondents seek an order for their costs.

1. We consider that the result of the appeal was effectively a draw:  each side was victorious in one of the two main areas in dispute.  Accordingly, we consider that it is not appropriate to make any order as to costs.

1. We will note in other matters that the respondents are entitled to an indemnity certificate pursuant to the provisions of s 4 of the Appeal Costs Act 1998.

- - -