Re Locktronic Systems Pty Ltd (No 2)

Case [2009] VSC 523


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT
CORPORATIONS LIST

No. 10001 of 2005

RE LOCKTRONIC SYSTEMS PTY LTD (in liquidation) (receivers appointed) (ACN 005 724 149)
GEORGE GEORGES AND JOHN ROSS LINDHOLM (in their capacities as joint and several liquidators of LOCKTRONIC SYSTEMS PTY LTD (in liquidation) (receivers appointed) and LOCKTRONIC SYSTEMS PTY LTD (in liquidation) (receivers appointed) Plaintiffs
v
THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Defendant
and
PETER KING First third party
MICHAEL DAVID WALSH Second third party
JOHN ANDREAS NISSEN Third third party

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JUDGE:

ROBSON J

WHERE HELD:

Melbourne

DATE OF HEARING:

15 September 2009

DATE OF JUDGMENT:

16 November 2009

CASE MAY BE CITED AS:

Re Locktronic Systems Pty Ltd (No 2)

MEDIUM NEUTRAL CITATION:

[2009] VSC 523

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CORPORATIONS – application for costs - plaintiffs and defendant Commissioner of Taxation consent to judgment against the Commissioner to recover preferential payments of tax under s 588FF of the Corporations Act 2001 – Commissioner proceeds against third party directors to be indemnified under s 588FGA(2) of the Corporations Act 2001 – whether Commissioner or third parties ought to pay plaintiffs’ costs for period after Commissioner admits plaintiffs’ claim – third parties ordered to pay costs for period after Commissioner admitted plaintiffs’ claim - rule 11.09 Supreme Court (General Civil Procedure) Rules 2005

APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr P D Crutchfield Middletons
For the Defendants Ms E Strong SC with
Mr S D Hay
Wisewould Mahony
For the Firstnamed & Thirdnamed Third Party Mr G T Bigmore QC with
Mr P Fary
McDonald Partners
For the Secondnamed Third Party In person

Allen v Oakey (1890) 62 LT 724
Archard v Ellerker (1888) 10 ALT 196
A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd [2009] VSCA 208
Commissioner of Taxation v Sims [2008] 72 NSWLR 716; [2008] NSWCA 298
Donald Campbell & Co Ltd v Pollak [1927] AC 732

Duncan v Commissioner of Taxation [2006] FCA 885
Keddie v Foxall [1955] VLR 320
London Steam Dyeing Co v Digby (1888) 36 WR 497
Noxequin Pty Ltd v Deputy Commissioner of Taxation [2007] NSWSC 87
Ritter v Godfrey [1920] 2 KB 47
Sims v Commissioner of Taxation [2007] NSWSC 1359
Trickey v Maynard (1893) 5 QLJ 115

HIS HONOUR:

  1. By an originating process of 19 December 2005, the first and second plaintiffs, the liquidators of Locktronic Systems Pty Ltd (in liquidation) (receivers appointed) (“Locktronic”) and the third plaintiff, Locktronic, applied under s 588FF of the Corporations Act 2001 for orders and declarations that certain alleged preferential payments entered into between Locktronic and the defendant, the Commissioner of Taxation, are insolvent transactions of Locktronic which are voidable by the liquidators pursuant to s 588FF of the Act.

  1. By an amended third party notice of 23 March 2007, the Commissioner claimed to be entitled to be indemnified by the third parties, who had been directors of Locktronic, under s 588FGA of the…

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Re Locktronic Systems Pty Ltd (No 2) [2009] VSC 523
Case
[2009] VSC 523
Decision Date

CaseChat Overview and Summary

Locktronic Systems Pty Ltd was the subject of an application for costs by the plaintiffs after a judgment against the Commissioner of Taxation. The case involved a dispute over preferential payments made by the company to the plaintiffs, as well as the Commissioner's pursuit of third-party directors for indemnification. The court had to decide whether the Commissioner or the third parties were responsible for the plaintiffs' costs incurred after the Commissioner conceded to the plaintiffs' claims. The central legal issue was the interpretation and application of sections 588FF and 588FGA(2) of the Corporations Act 2001, along with rule 11.09 of the Supreme Court (General Civil Procedure) Rules 2005.

The court examined the statutory provisions and relevant case law to determine the appropriate party to bear the costs. The plaintiffs argued that the Commissioner, having conceded to their claims, should be responsible for all costs incurred. The Commissioner contended that the third parties should be liable for the costs incurred after the concession, given the nature of the claims against them. The court ultimately ruled that the third parties were responsible for the costs incurred after the Commissioner admitted to the plaintiffs' claims, aligning with the principles outlined in rule 11.09 of the Supreme Court (General Civil Procedure) Rules 2005.

The court's reasoning hinged on the interpretation of the statutory framework and the procedural rules governing costs in civil litigation. It found that the third parties, who were being pursued for indemnification, should bear the costs incurred after the Commissioner conceded the claims. This decision was grounded in the understanding that the third parties' liability was distinct from that of the Commissioner, and the costs should reflect the specific claims against them.

The court ordered the third parties to pay the plaintiffs' costs for the period after the Commissioner admitted to the plaintiffs' claims. This ruling was consistent with the statutory and procedural provisions, ensuring that the costs were fairly allocated between the parties involved in the litigation.

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Background

Background to the litigation

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Evidence Before The Court

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