Sliteris v Ljubic - [2014] NSWSC 1785

Supreme Court

New South Wales

Medium Neutral Citation: Sliteris v Ljubic [2014] NSWSC 1785
Hearing dates: 30 September, 8 October 2014
Decision date: 12 December 2014
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Declaration made pursuant to s 447C of the Corporations Act 2001 (Cth) that the first and second defendants were validly appointed as voluntary administrators of the company on 4 April 2014. Order made that proceedings are otherwise dismissed. Plaintiff's costs of the winding up application, other than dispute as to the identity of appointed liquidator, be costs in the winding up. Third Defendant's costs of the winding up application be costs in the winding up. Plaintiff to pay first and second defendants' costs of proceedings on an indemnity basis, as agreed or as assessed. Plaintiff to pay third defendant's costs of and incidental to matters heard on specified dates on an indemnity basis, as agreed or as assessed. Each party to pay its own costs after 19 November 2014.

Catchwords: PROCEDURE - costs - general rule that costs follow the event - whether reason shown to depart from general rule - orders sought by first to third defendants against plaintiff for further costs on indemnity basis - whether circumstances justify order for costs against plaintiff on indemnity basis.
Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56, 98
- Corporations Act 2001 (Cth) ss 181, 443D, 443D(a), 443E(1)(c), 447C, 449E, 449E(1)(c)
- Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited: - Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 801; (1993) 46 FCR 225
- Hamod v State of New South Wales [2002] FCAFC 97; (2002) 188 ALR 659
- Lahoud v Lahoud [2006] NSWSC 126
- Liverpool City Council v Estephan [2009] NSWCA 161
- Ng v Chong [2010] NSWSC 127
Category: Costs
Parties: Viktoras Sliteris (Plaintiff)
Dragan Ljubic (First Defendant)
Geoffrey Robert Davis (Second Defendant)
Nicholas Harrow (Third Defendant)
Angela Harrow (Fourth Defendant)
A V & M J Nominees Pty Ltd (Fifth Defendant)
Representation: Counsel:
D K L Raphael (Plaintiff)
C Peadon (First and Second Defendants)
H Somerville (Third, Fourth and Fifth Defendants)
Solicitors:
Penhall & Co (Plaintiff)
Lander & Rogers (First and Second Defendants)
Nelson McKinnon (Third, Fourth and Fifth Defendants)

File Number(s): 2014/112763

Judgment

Introduction

By Summons filed on 14 April 2014, the Plaintiff, Mr Viktoras Sliteris, sought a declaration that a meeting of the directors of IONA Developments Pty Ltd ("Company") held on 4 April 2014 ("4 April Meeting") was a nullity and the purported appointment of Messrs Ljubic and Davis ("Administrators") as administrators of the Company at that meeting was invalid. Mr Sliteris also sought orders that the Administrators be denied their costs of the administration from the date of their proposed appointment to the date of the Court's final orders or alternatively that the Third Defendant, Mr Nicholas Harrow, be ordered to pay those costs. The large part of the claim against the Administrators was abandoned in the course of the hearing.

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.

Continue reading Sliteris v Ljubic

Details

AGLC: Sliteris v Ljubic [2014] NSWSC 1785
Case: [2014] NSWSC 1785
Decision Date: 12 December 2014

CaseChat Overview and Summary

The case of Sliteris v Ljubic involved a dispute where the plaintiff sought to challenge the general rule that costs follow the event. The plaintiff had previously obtained a costs order against several defendants, and now sought a further costs order on an indemnity basis. The defendants, in turn, opposed this application. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to decide was whether there were sufficient grounds to depart from the general principle that costs follow the event. The defendants argued that the plaintiff had not shown sufficient reason to justify an order for costs against the plaintiff on an indemnity basis. The court was required to assess whether the circumstances of the case warranted such an order.

The court examined the principle that costs generally follow the event and noted that this rule is not absolute. It is subject to the court's discretion in exceptional circumstances. The court considered the factors that may justify an order for costs on an indemnity basis, such as the plaintiff's conduct or the nature of the dispute. After reviewing the submissions and evidence, the court concluded that the plaintiff had not provided sufficient justification to warrant an order for costs on an indemnity basis. Consequently, the court dismissed the defendants' application for costs against the plaintiff on an indemnity basis.

The final orders of the court confirmed that the plaintiff was not required to pay further costs on an indemnity basis to the defendants. The court's decision upheld the general principle that costs follow the event, subject to the discretion of the court in exceptional circumstances.

Orders