Octaviar Ltd, Re (No 9) - [2009] QSC 273

SUPREME COURT OF QUEENSLAND

CITATION:

Re Octaviar Ltd (No 9) [2009] QSC 273

PARTIES:

THE PUBLIC TRUSTEE OF QUEENSLAND

(Applicant)

v

OCTAVIAR LTD (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436

FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LTD AND S J PARBERY AND A M SIMS AS RECEIVERS AND MANAGERS OF OCTAVIAR LTD (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436

OPI PACIFIC FINANCE PTY LTD

OCTAVIAR INVESTMENT HOLDINGS NO. 3 PTY LTD and SUNLEISURE GROUP PTY LTD (RECEIVERS AND MANAGERS APPOINTED)

COMMISSIONER OF TAXATION

WELLINGTON CAPITAL LTD AS RESPONSIBLE ENTITY OF THE PREMIUM INCOME FUND

CHALLENGER MANAGED INVESTMENTS LIMITED AS RESPONSIBLE ENTITY OF THE CHALLENGER HIGH YIELD FUND

(Respondents)

THE PUBLIC TRUSTEE OF QUEENSLAND

(Applicant)

v

OCTAVIAR ADMINISTRATION PTY LTD (IN LIQ) ACN 101 069 390

FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LTD AND S J PARBERY AND A M SIMS AS RECEIVERS AND MANAGERS OF OCTAVIAR LTD (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436

OPI PACIFIC FINANCE PTY LTD

OCTAVIAR INVESTMENT HOLDINGS NO. 3 PTY LTD and SUNLEISURE GROUP PTY LTD (RECEIVERS AND MANAGERS APPOINTED)

COMMISSIONER OF TAXATION

WELLINGTON CAPITAL LTD AS RESPONSIBLE ENTITY OF THE PREMIUM INCOME FUND

CHALLENGER MANAGED INVESTMENTS LIMITED AS RESPONSIBLE ENTITY OF THE CHALLENGER HIGH YIELD FUND

(Respondents)

FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LIMITED ACN 114 624 958

(Applicant)

v

OCTAVIAR LTD (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436

JOHN LETHBRIDGE GREIG AND NICHOLAS HARWOOD IN THEIR CAPACITY AS PROVISIONAL LIQUIDATORS OF OCTAVIAR LIMITED (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436

(Respondents)

FILE NO/S:

BS 1848 of 2009
BS 1850 of 2009
BS 3650 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 August 2009

JUDGE:

McMurdo J

ORDER:

1.    In BS 1848/09, the costs of the Public Trustee of Queensland and the costs of the Commissioner of Taxation (save for the Commissioner’s costs prior to 7 March 2009) of these proceedings be paid by Octaviar Ltd, as costs in respect of the application for the order for the winding up of that company.

2.    In BS 1850/09, the costs of the Public Trustee of Queensland and the costs of the Commissioner of Taxation (save for the Commissioner’s costs prior to 7 March 2009) be costs in the winding up of Octaviar Administration Pty Ltd.

3.    The operation of order (2) be postponed until further order to allow the parties to file written submissions on the question of costs within 14 days after delivery of these reasons.

4.    In BS 3650/09, the costs of the Public Trustee of Queensland be paid by Fortress Credit Corporation (Australia) II Pty Ltd.

CATCHWORDS:

PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OUT OF A FUND – OTHER CASES – where the applicant succeeded upon his applications to set aside deeds of company arrangement – where one of…

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: [2009] QSC 273
Decision Date: 21 August 2009

CaseChat Overview and Summary

The matter before the court involved multiple applications and responses from various respondents regarding the winding up of Octaviar Ltd and Octaviar Administration Pty Ltd. The Public Trustee of Queensland and the Commissioner of Taxation were respondents in the proceedings, as was Fortress Credit Corporation (Australia) II Pty Ltd. The primary dispute centred around the allocation of costs between the applicant, who had successfully set aside certain deeds of company arrangement, and the respondents who opposed the application.

The legal issues for the court to decide included whether the costs incurred by the applicant should be borne by the respondents who opposed the application or whether they should be considered costs in respect of the winding up application. The court needed to consider the nature of the allegations raised by the applicant and their outcomes, the scope of submissions made by the respondents, and the interests of the respondents beyond those of pure creditors.

The court ruled that the costs of the Public Trustee of Queensland and the Commissioner of Taxation, except for the Commissioner's costs prior to 7 March 2009, were to be paid by Octaviar Ltd as costs in respect of the winding up application. These costs were to be paid in two separate proceedings, with the operation of one of these orders postponed to allow for further submissions. Additionally, the costs of the Public Trustee of Queensland in another proceeding were to be paid by Fortress Credit Corporation (Australia) II Pty Ltd. The court's decision was based on a detailed analysis of the nature of the allegations, the scope of the submissions, and the interests of the respondents in the proceedings.

Orders

Orders of the court

1. In BS 1848/09, the costs of the Public Trustee of Queensland and the costs of the Commissioner of Taxation (save for the Commissioner’s costs prior to 7 March 2009) of these proceedings be paid by Octaviar Ltd, as costs in respect of the application for the order for the winding up of that company.

2. In BS 1850/09, the costs of the Public Trustee of Queensland and the costs of the Commissioner of Taxation (save for the Commissioner’s costs prior to 7 March 2009) be costs in the winding up of Octaviar Administration Pty Ltd.

3. The operation of order (2) be postponed until further order to allow the parties to file written submissions on the question of costs within 14 days after delivery of these reasons.

4. In BS 3650/09, the costs of the Public Trustee of Queensland be paid by Fortress Credit Corporation (Australia) II Pty Ltd.

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.

CITATION:	Re Octaviar Ltd (No 9) [2009] QSC 273
PARTIES:	THE PUBLIC TRUSTEE OF QUEENSLAND (Applicant) v OCTAVIAR LTD (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436 FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LTD AND S J PARBERY AND A M SIMS AS RECEIVERS AND MANAGERS OF OCTAVIAR LTD (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436 OPI PACIFIC FINANCE PTY LTD OCTAVIAR INVESTMENT HOLDINGS NO. 3 PTY LTD and SUNLEISURE GROUP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) COMMISSIONER OF TAXATION WELLINGTON CAPITAL LTD AS RESPONSIBLE ENTITY OF THE PREMIUM INCOME FUND CHALLENGER MANAGED INVESTMENTS LIMITED AS RESPONSIBLE ENTITY OF THE CHALLENGER HIGH YIELD FUND (Respondents) THE PUBLIC TRUSTEE OF QUEENSLAND (Applicant) v OCTAVIAR ADMINISTRATION PTY LTD (IN LIQ) ACN 101 069 390 FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LTD AND S J PARBERY AND A M SIMS AS RECEIVERS AND MANAGERS OF OCTAVIAR LTD (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436 OPI PACIFIC FINANCE PTY LTD OCTAVIAR INVESTMENT HOLDINGS NO. 3 PTY LTD and SUNLEISURE GROUP PTY LTD (RECEIVERS AND MANAGERS APPOINTED) COMMISSIONER OF TAXATION WELLINGTON CAPITAL LTD AS RESPONSIBLE ENTITY OF THE PREMIUM INCOME FUND CHALLENGER MANAGED INVESTMENTS LIMITED AS RESPONSIBLE ENTITY OF THE CHALLENGER HIGH YIELD FUND (Respondents) FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LIMITED ACN 114 624 958 (Applicant) v OCTAVIAR LTD (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436 JOHN LETHBRIDGE GREIG AND NICHOLAS HARWOOD IN THEIR CAPACITY AS PROVISIONAL LIQUIDATORS OF OCTAVIAR LIMITED (IN PROV LIQ) (RECEIVERS AND MANAGERS APPOINTED) ACN 107 863 436 (Respondents)
FILE NO/S:	BS 1848 of 2009 BS 1850 of 2009 BS 3650 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 August 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5 August 2009
JUDGE:	McMurdo J
ORDER:	1. In BS 1848/09, the costs of the Public Trustee of Queensland and the costs of the Commissioner of Taxation (save for the Commissioner’s costs prior to 7 March 2009) of these proceedings be paid by Octaviar Ltd, as costs in respect of the application for the order for the winding up of that company. 2. In BS 1850/09, the costs of the Public Trustee of Queensland and the costs of the Commissioner of Taxation (save for the Commissioner’s costs prior to 7 March 2009) be costs in the winding up of Octaviar Administration Pty Ltd. 3. The operation of order (2) be postponed until further order to allow the parties to file written submissions on the question of costs within 14 days after delivery of these reasons. 4. In BS 3650/09, the costs of the Public Trustee of Queensland be paid by Fortress Credit Corporation (Australia) II Pty Ltd.
CATCHWORDS:	PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OUT OF A FUND – OTHER CASES – where the applicant succeeded upon his applications to set aside deeds of company arrangement – where one of…