Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation) - [Costs]

[2022] NSWSC 665

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation) – [Costs] [2022] NSWSC 665

Hearing dates:

On the papers

Decision date:

25 May 2022

Jurisdiction:

Equity - Corporations List

Before:

Hammerschlag J

Decision:

Orders for costs – see [11]

Catchwords:

COSTS – no issue of principle

Category:

Costs

Parties:

Volkswagen Financial Services Australia Pty Ltd - First Plaintiff / First Respondent to the Fourth Cross-Claim
Ken Whittingham in his capacity as Receiver and Manager of Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation) and PJM Fleet Management Pty Ltd (Receivers and Managers Appointed (In Liquidation) - Second Plaintiff / Second Respondent to the Fourth Cross-Claim
Atlas CTL Pty Ltd (Receivers and Managers Appointed)(In Liquidation) - First Defendant / Third Respondent to the Fourth Cross-Claim
PJM Fleet Management Pty Ltd (Receivers and Managers Appointed)(In Liquidation) - Second Defendant / Fourth Respondent to the Fourth Cross-Claim
Nissan Financial Services Australia Pty Ltd - Third Defendant / Fifth Respondent to the Fourth Cross-Claim
Andrew Stewart Reed Hewitt and Matthew James Byrnes in their capacities as Receivers and Managers of Atlas CTL Pty Ltd (in Liquidation)(Receivers and Managers Appointed) - Fourth Defendants / Sixth Respondents to the Fourth Cross-Claim
BMW Australia Finance Limited - Fifth Defendant / Seventh Respondent to the Fourth Cross-Claim
Bruno Secatore and Sam Kaso in their capacity as Receivers and Managers of PJM Fleet Management Pty Ltd (Receivers and Managers Appointed)(In Liquidation) - Sixth Defendants / Eighth Respondents to the Fourth Cross-Claim
Richard Albarran, Richard John Lawrence and John Vouris (in their capacities as Administrators and Liquidators of Atlas CTL Pty Ltd (In Liquidation) and PJM Fleet Management Pty Ltd (In Liquidation) - Seventh Defendant / Applicants to the Fourth Cross-Claim

Representation:

Counsel:
S Keizer with D Farinha - First Plaintiff / First Respondent and Second Plaintiff / Second Respondent (Volkswagen and Volkswagen receiver)
HNG Austin QC with AC Roe - Third Defendant / Fifth Respondent and Fourth Defendants / Sixth Respondent (Nissan and Nissan receivers)
N Mirzai - Fifth Defendant / Seventh Respondent and Sixth Defendants / Eighth Respondents (BMW and BMW receivers)
J Evans QC with S Sykes - Seventh Defendants / Applicants to the Fourth Cross-Claim (former administrators/present liquidators)

Solicitors:
Hunt & Hunt Lawyers - Volkswagen and Volkswagen receiver
Mills Oakley - Nissan and Nissan receivers
HWL Ebsworth Lawyers - BMW and BMW receivers
SLF Lawyers - former administrators / present liquidators

File Number(s):

2020/155515

JUDGMENT

1. HIS HONOUR:   On 12 May 2022, I gave judgment in the principal proceedings: Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (Receivers and Managers Appointed) (In Liquidation) [2022] NSWSC 573.

2. Definitions used in the principal judgment are used here.

3. The administrators/liquidators failed against each of the secured creditors. In the principal judgment, I directed the parties to provide position papers setting out their respective positions on costs. They did so, although the administrators/liquidators were late. The parties agreed that costs should be determined on the papers.

4. BMW and Nissan proffered short minutes of order setting out their respective positions on costs, which are not opposed by the administrators/liquidators. They seek indemnity costs from 28 March 2022 and 5 April 2022 respectively based on Calderbank letters of offer.

5. The only dispute is between the administrators/liquidators and Volkswagen.

6. Volkswagen seeks indemnity costs based on an email said to be a Calderbank letter sent to the administrators/liquidators on 13 April 2022, in which Volkswagen offered a reduction of $150,000 in lease liabilities of approximately $300,000 said to be owed by the administrators/liquidators to Volkswagen, against dismissal of the administrators/liquidators’ cross-claim.

7. In other words, the offer was that the administrators/liquidators pay Volkswagen $150,000 in respect of lease liabilities. That claim was not the subject of these proceedings and Volkswagen obtained no money judgment against the administrators/liquidators.

8. It therefore cannot be said that the administrators/liquidators achieved a result less advantageous than that offered or that Volkswagen received one more advantageous.

9. But in any event, in the context of the issues fought out in the proceedings and given the lateness of the offer, on the second day of the trial, it can hardly be said that the administrators/liquidators’ refusal of the offer was unreasonable.

10. In my opinion, Volkswagen is not entitled to an order for indemnity costs.

11. I make the following orders:

1. The Amended Statement of Claim filed 11 March 2022 (fourth cross-claim) is dismissed.

2. Judgment for the seventh respondent to the fourth cross-claim against the applicants to the fourth cross-claim for $281,266.39.

3. The applicants to the fourth cross-claim are jointly and severally liable to pay the costs of the seventh respondent’s to the fourth cross-claim

1. of and incidental to the fourth cross-claim on

1. the ordinary basis up to and including 28 March 2022

2. the indemnity basis from 29 March 2022 up to the end of the hearing on 21 April 2022

2. of and incidental to the question of costs

as agreed or assessed.

4. The applicants to the fourth cross-claim are jointly and severally liable to pay the costs of the fifth and sixth respondents’ to the fourth cross-claim of and incidental to the fourth cross-claim on

1. the ordinary basis up to and including 4 April 2022

2. the indemnity basis from 5 April 2022

as agreed or assessed.

5. The applicants to the fourth cross-claim are jointly and severally liable to the pay the costs of the first and second respondents of and incidental to the fourth cross-claim as agreed or assessed.

Amendments

26 May 2022 - Amendment to Parties and Representation