Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Dungowan Manly Pty Ltd (in liq) [2015] NSWSC 915 Hearing dates: 10 – 13 and 19 March, 23 June 2015 Decision date: 10 July 2015 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Orders to be made substantially in accordance with draft Orders submitted to the Court. Order the Third-Sixth Cross-Defendants pay the Cross-Claimants’ disbursements as agreed or as assessed, and two-thirds of the Plaintiffs’ costs of the proceedings, as agreed or as assessed. Otherwise no order as to costs.
Catchwords: PROCEDURE – judgments and orders – proposed orders – form of orders to be made to give effect to primary judgment.
PROCEDURE – costs – orders made as to costs as between parties to proceedings.
PROCEDURE – interest – whether interest to be awarded under s 100 of the Civil Procedure Act 2005 (NSW).Legislation Cited: Civil Procedure Act 2005 (NSW) ss 14, 90(1), 98, 100
Uniform Civil procedure Rules 2005 (NSW) rr 6.12, 42.1
Corporations Act 2001 (Cth) pt 5.3A, pt 5.6 div 6; ss 443D, 449E, 479, 479(3), 511, 553, 553C, 553C(2), 554, 556, 563B, 563B(1), 563B(2), 564
Supreme Court (Corporations) Rules 1999 (NSW) r 2.13Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Cresvale Far East Ltd v Cresvale Securities Ltd (No 2) [2001] NSWSC 791; (2001) 39 ACSR 622
Farrell v Mulroney [1978] 1 NSWLR 221
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Liberty Industrial Pty Ltd v Donald Mcarthy Trading Australia Pty Ltd [2013] NSWSC 443
McGrath v Sturesteps; Sturesteps v HIH Overseas Holdings Ltd (in liq) [2011] NSWCA 315; (2011) 81 NSWLR 690
NSW Trustee and Guardian v Schneider [2011] NSWSC 424
Paul’s Retail Pty Ltd v Morgan [2009] NSWSC 1222
Petrovski v Radin [2000] NSWSC 323
Re Dungowan Manly Pty Ltd (in liq) [2015] NSWSC 491
Re Emilco Pty Ltd (in liq) [2002] NSWSC 1124; (2002) 43 ACSR 536
Re HIH Casualty and General Insurance Ltd [2006] NSWSC 6
Re Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129; (2004) 48 ACSR 681
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15Category: Procedural and other rulings Parties: Adam Farnsworth and Adam Shepard (in their capacity as joint and several liquidators of Dungowan Manly Pty Ltd (First Plaintiff/First Cross-Defendant on First and Second Cross-Claims)
Dungowan Manly Pty Ltd (in liq) (Second Plaintiff/Second Cross-Defendant on Second Cross-Claim)
Patrick McLaughlin (First Defendant/First Cross-Claimant on First Cross-Claim/Fourth Cross-Defendant on Second Cross-Claim)
Jennifer McLaughlin (Second Defendant/Second Cross-Claimant on First Cross-Claim/Third Cross-Defendant on Second Cross-Claim)
Turner Freeman Lawyers (Third Defendant/Second Cross-Defendant on First Cross-Claim/Cross-Claimant on Second Cross-Claim)
Loafer Pty Ltd (Third Cross-Defendant on First Cross-Claim)
Peter William Brown (Fourth Cross-Defendant on First Cross-Claim)
Louise Jane Brown (Fifth Cross-Defendant on First Cross-Claim)
Garmen Pty Ltd (Sixth…
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- Case
- [2015] NSWSC 915
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the form of the orders proposed by the liquidators was appropriate, the allocation of costs between the parties, and whether interest should be awarded under section 100 of the Civil Procedure Act 2005 (NSW).
The court held that the form of the orders proposed by the liquidators was appropriate to give effect to the primary judgment. The court found that the liquidators were entitled to costs for the proceeding but that the costs should not be taxed in the usual manner. The court also held that interest should not be awarded under section 100 of the Civil Procedure Act 2005 (NSW), as the circumstances did not warrant it.
The court made orders setting aside the transaction as a transaction at an undervalue and dismissing the counterclaim for interest. The court also ordered that the liquidators' costs be paid by the opposing party, but that the costs be assessed by agreement between the parties or, failing agreement, by the court.
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