Strazdins v DNPW Pty Ltd (No 2) - [2014] FCA 199

FEDERAL COURT OF AUSTRALIA
Strazdins v DNPW Pty Ltd (No 2) [2014] FCA 199

Citation: Strazdins v DNPW Pty Ltd (No 2) [2014] FCA 199

Parties: ANDRE STRAZDINS and NICK COOPER v DNPW PTY LTD

File number: SAD 98 of 2013

Judge: BESANKO J

Date of judgment: 12 March 2014

Catchwords:
CORPORATIONS – application for determination of administrators’ remuneration – amendment to administrators’ application – compliance with notice requirements – Federal Court (Corporations) Rules 2000 (Cth) r 9.2 – order dispensing with need for further compliance – whether the Court has power to dismiss of notices of objection – referral for determination by Registrar.

COSTS – costs of administrators’ application sought against objectors – joinder of objectors to make adverse costs orders against them – objectors not joined – costs of objector application.

Legislation: Corporations Act 2001 (Cth) ss 447A, 449E
Federal Court of Australia Act 1976 (Cth) s 35A
Federal Court (Corporations) Rules 2000 (Cth) rr 9.2, 16.1, Schedule 2 Item 46

Cases cited: Grocon Constructors Pty Ltd v Kimberley Securities Ltd [2009] NSWSC 691
Strazdins v DNPW Pty Ltd [2013] FCA 1368

Date of hearing: 3 February 2014

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 25

Counsel for the Plaintiffs: Mr R Ross-Smith with Mr B Golden

Solicitor for the Plaintiffs: Fox Tucker Lawyers

Counsel for the Defendant, NT Pubco Pty Ltd, Garrihy Pty Ltd and DMTL Management Pty Ltd: Mr W Roper

Solicitor for the Defendant, NT Pubco Pty Ltd, Garrihy Pty Ltd and DMTL Management Pty Ltd: Madsen Rowley

Counsel for ANZ Bank: Mr B Roberts

Solicitor for ANZ Bank: Finlaysons

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 98 of 2013

BETWEEN:
ANDRE STRAZDINS
First Plaintiff

NICK COOPER
Second Plaintiff

AND:
DNPW PTY LTD
Defendant

JUDGE:

BESANKO J

DATE OF ORDER:

12 MARCH 2014

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
(1)The plaintiffs have leave to amend their originating process filed on 9 May 2013 in accordance with the form of amended originating process attached to draft orders dated 3 February 2014, save that the reference to the date upon which the originating process was amended and the date of the Court order pursuant to which that was done is to be the date of this order.
(2)Subject to order 3 below, any further compliance by the plaintiffs with the notice procedure specified in r 9.2 of the Federal Court (Corporations) Rules 2000 (Cth) is dispensed with.
(3)The plaintiffs serve the amended originating process on Hoggies Darwin Pty Ltd (trading as Hoggs Breath Cafe Darwin), Merit Partners Pty Ltd, Jalouise Pty Ltd and Dunstruck Pty Ltd within seven days.
(4)The interlocutory process dated 8 July 2013 be dismissed.
(5)There be no order as to costs as between the plaintiffs, on the one hand, and NT Pubco Pty Ltd, DMTL Management Pty Ltd, Garrihy Pty Ltd and Australia and New Zealand Banking Group Limited, on the other, of the plaintiffs’ originating process filed on 9 May 2013, between…

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: [2014] FCA 199
Decision Date: 12 March 2014

CaseChat Overview and Summary

In this matter, Strazdins, an administrator of a company, applied for determination of their remuneration and the court had to decide on the validity of the application, the need for further compliance with notice requirements, and the costs associated with the proceedings. The defendant company, DNPW Pty Ltd, objected to the application and the case was heard in the Federal Circuit Court of Australia. The court had to determine whether the plaintiffs had the right to amend their originating process and whether the Court had the power to dismiss notices of objection. The court also had to decide on the costs of the administrators’ application sought against the objectors and the costs of the objectors' application.

The court found that the plaintiffs had leave to amend their originating process filed on 9 May 2013 in accordance with the form of amended originating process attached to draft orders dated 3 February 2014. The court also found that any further compliance by the plaintiffs with the notice procedure specified in r 9.2 of the Federal Court (Corporations) Rules 2000 (Cth) was dispensed with, subject to further orders. The court found that the plaintiffs must serve the amended originating process on certain parties within seven days. The interlocutory process dated 8 July 2013 was dismissed.

The court found that there be no order as to costs as between the plaintiffs, on the one hand, and NT Pubco Pty Ltd, DMTL Management Pty Ltd, Garrihy Pty Ltd and Australia and New Zealand Banking Group Limited, on the other, of the plaintiffs’ originating process filed on 9 May 2013, between 9 May 2013 and the date of this order. The court found that the defendant company, NT Pubco Pty Ltd, DMTL Management Pty Ltd and Garrihy Pty Ltd pay 50% of the plaintiffs’ costs of their attendance at the hearings on 30 July 2013 and 13 August 2013, but otherwise there be no order as to the costs of the interlocutory process dated 8 July 2013. The plaintiffs’ application for the determination of their remuneration was referred to a Registrar of the Court for hearing and determination.

The court's decision provides guidance on the application of the Federal Court (Corporations) Rules 2000 (Cth) r 9.2 and the costs associated with proceedings in the Federal Circuit Court of Australia. The decision also highlights the importance of serving amended originating processes on relevant parties and the power of the Court to dismiss notices of objection. The decision provides a framework for the determination of administrators’ remuneration and the costs associated with proceedings in similar cases in the future.

Orders

Orders of the court

(1) The plaintiffs have leave to amend their originating process filed on 9 May 2013 in accordance with the form of amended originating process attached to draft orders dated 3 February 2014, save that the reference to the date upon which the originating process was amended and the date of the Court order pursuant to which that was done is to be the date of this order.

(2) Subject to order 3 below, any further compliance by the plaintiffs with the notice procedure specified in r 9.2 of the Federal Court (Corporations) Rules 2000 (Cth) is dispensed with.

(3) The plaintiffs serve the amended originating process on Hoggies Darwin Pty Ltd (trading as Hoggs Breath Cafe Darwin), Merit Partners Pty Ltd, Jalouise Pty Ltd and Dunstruck Pty Ltd within seven days.

(4) The interlocutory process dated 8 July 2013 be dismissed.

(5) There be no order as to costs as between the plaintiffs, on the one hand, and NT Pubco Pty Ltd, DMTL Management Pty Ltd, Garrihy Pty Ltd and Australia and New Zealand Banking Group Limited, on the other, of the plaintiffs’ originating process filed on 9 May 2013, between 9 May 2013 and the date of this order.

(6) The defendant company, NT Pubco Pty Ltd, DMTL Management Pty Ltd and Garrihy Pty Ltd pay 50% of the plaintiffs’ costs of their attendance at the hearings on 30 July 2013 and 13 August 2013, but otherwise there be no order as to the costs of the interlocutory process dated 8 July 2013.

(7) The plaintiffs’ application for the determination of their remuneration be referred to a Registrar of the Court for hearing and determination.

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

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

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Citation:		Strazdins v DNPW Pty Ltd (No 2) [2014] FCA 199
Parties:		ANDRE STRAZDINS and NICK COOPER v DNPW PTY LTD
File number:		SAD 98 of 2013
Judge:		BESANKO J
Date of judgment:		12 March 2014
Catchwords:		CORPORATIONS – application for determination of administrators’ remuneration – amendment to administrators’ application – compliance with notice requirements – Federal Court (Corporations) Rules 2000 (Cth) r 9.2 – order dispensing with need for further compliance – whether the Court has power to dismiss of notices of objection – referral for determination by Registrar. COSTS – costs of administrators’ application sought against objectors – joinder of objectors to make adverse costs orders against them – objectors not joined – costs of objector application.
Legislation:		Corporations Act 2001 (Cth) ss 447A, 449E Federal Court of Australia Act 1976 (Cth) s 35A Federal Court (Corporations) Rules 2000 (Cth) rr 9.2, 16.1, Schedule 2 Item 46
Cases cited:		Grocon Constructors Pty Ltd v Kimberley Securities Ltd [2009] NSWSC 691 Strazdins v DNPW Pty Ltd [2013] FCA 1368
Date of hearing:	3 February 2014
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Plaintiffs:	Mr R Ross-Smith with Mr B Golden
Solicitor for the Plaintiffs:	Fox Tucker Lawyers
Counsel for the Defendant, NT Pubco Pty Ltd, Garrihy Pty Ltd and DMTL Management Pty Ltd:	Mr W Roper
Solicitor for the Defendant, NT Pubco Pty Ltd, Garrihy Pty Ltd and DMTL Management Pty Ltd:	Madsen Rowley
Counsel for ANZ Bank:	Mr B Roberts
Solicitor for ANZ Bank:	Finlaysons

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 98 of 2013

JUDGE:	BESANKO J
DATE OF ORDER:	12 MARCH 2014
WHERE MADE:	ADELAIDE