Vanguard 2017 Pty Limited, in the matter of Modena Properties Pty Limited v Modena Properties Pty Limited (No 2)

The matter before the Court involved a winding up application for Modena Properties Pty Limited by Vanguard 2017 Pty Limited. The primary dispute centered on the payment of $138,000, which Vanguard claimed was owed by Modena. The application was brought after a statutory demand had been issued by Vanguard, demanding payment from Modena. The case delved into the contractual obligations between the parties, particularly regarding the commitment fees paid by Vanguard under agreements for property developments in Tweed Heads and Springwood.

The court was tasked with determining whether the non-party director of Modena, Mr Andrew Carr, should be held liable for the costs of the winding up application. The court also had to decide whether Modena and Mr Carr should be liable for costs on an indemnity basis, given that misleading evidence had been presented which led to increased costs for Vanguard. Additionally, the court had to consider whether the proceedings were unduly prolonged by groundless contentions or wilful disregard for known facts.

The court found that Mr Carr's active role in managing the litigation and his substantial funding of the litigation, combined with his interest in the outcome, justified holding him personally liable for costs. Furthermore, the court determined that misleading evidence provided by Modena, which Mr Carr knew to be false, warranted costs on an indemnity basis. The court also found that the proceedings were prolonged by groundless contentions and wilful disregard for known facts, leading to the decision that costs should be awarded on an indemnity basis.

The final orders of the Court were that Modena was to pay Vanguard's costs up until 14 February 2018 on a party and party basis, and from 15 February 2018 on an indemnity basis. Mr Carr was to pay Vanguard's costs from 27 March 2018 on an indemnity basis, except for those related to an interlocutory process filed on 12 June 2018, which were to be paid on a party and party basis. Additionally, Mr Carr was to pay costs associated with another interlocutory process filed on 29 March 2018 on a party and party basis. The costs were to be reimbursed from the property of Modena in accordance with the Corporations Act.