Pleash (Liquidator) v Tucker (No 2)

FEDERAL COURT OF AUSTRALIA

Pleash (Liquidator) v Tucker (No 2) [2018] FCAFC 168

Appeal from:

Pleash, in the matter of Equititrust Limited (In Liquidation) (Receivers and Managers Appointed) (No 3) [2017] FCA 1074

File number:

QUD 2 of 2018

Judges:

MCKERRACHER, FARRELL AND BANKS-SMITH JJ

Date of judgment:

5 October 2018

Catchwords:

COSTS - where indemnity costs sought - where leave to appeal granted but appeal dismissed - whether rejection of offers unreasonable

Legislation:

Federal Court Rules 2011 (Cth) rr 20.31, 25

Cases cited:

Calderbank v Calderbank [1975] 3 All ER 333

Pleash (Liquidator) v Tucker [2018] FCAFC 144

Visscher v Teekay Shipping (Australia) Pty Ltd (No 5) [2013] FCA 28

Date of hearing:

Determined on the papers

Date of last submissions:

6 September 2018 (Appellant)
5 and 12 September 2018 (Respondents)

Registry:

Queensland

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

34

Counsel for the Appellant:

Mr SC Russell

Solicitor for the Appellant:

Russells

Counsel for the Respondents:

Mr P Hackett

Solicitor for the Respondents:

Tucker & Cowen Solicitors

ORDERS

QUD 2 of 2018

BETWEEN:

BLAIR ALEXANDER PLEASH AND RICHARD ALBARRAN AS LIQUIDATORS OF EQUITITRUST LTD (IN LIQ) (RECEIVERS AND MANAGERS APPOINTED) (ACN 061 383 944)

Appellant

AND:

DAVID ROBERT WALTER TUCKER

First Respondent

VIKWOOD PTY LTD

Second Respondent

TUCKER FINANCE PTY LTD (and others named in the Schedule)

Third Respondent

JUDGES:	MCKERRACHER, FARRELL AND BANKS-SMITH JJ
DATE OF ORDER:	5 OCTOBER 2018

THE COURT ORDERS THAT:

1.The respondents are to bear their own costs of the affidavits removed from the Court record in accordance with the orders of the Court made 9 May 2018 and of the affidavits filed by the respondents dated 16 May 2018.

2.Subject to order 1, the appellant (Liquidators) pay the respondents' costs of the application for leave to appeal, the appeal and the interlocutory application filed 25 May 2018 on a party and party basis.

3.Subject to order 1, the Liquidators pay the respondents' costs of the Production Application:

(a)before 11.00 am on 26 April 2018 on a party and party basis;

(b)after 11.00 am on 26 April 2018 on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1. On 29 August 2018 we granted leave to appeal but dismissed the appeal, and also dismissed an application for production of documents:  Pleash (Liquidator) v Tucker [2018] FCAFC 144. At the time that judgment was given the respondents indicated that they wished to seek costs on an indemnity basis, and an order was therefore made that the parties file submissions, with the question of costs to be determined on the papers.

2. Put generally, the parties made submissions as to the costs of the application for leave to appeal, the appeal itself and an application for production of documents.

3. It is necessary to set out some of the relevant events.

4. On 3 January 2018 the appellant (Liquidators)…