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White Constructions ACT Pty Ltd (in liq) v White

White Constructions ACT Pty Ltd (in liq) v White

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Case Copied 14 April 2004 20 min read

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CITATION: White ACT (in liquidation) v G B White & Ors [2004] NSWSC 303

HEARING DATE(S): 14 April 2004

JUDGMENT DATE:
14 April 2004

JUDGMENT OF: McDougall J at 1

DECISION: See paras [61] and [67] of judgment

CATCHWORDS: COSTS - indemnity costs - requirement for special or unusual features - whether shown - no question of principle

LEGISLATION CITED: Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970
Corporations Law

CASES CITED: Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Harrison v Schipp [2001] NSWCA 13
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Oshlack v Richmond River Council (1998) 193 CLR 72
Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412
NMFM Property Pty Ltd v Citibank Ltd (No 2) (2000) 109 FCR 77
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640
Emanuel Management Pty Ltd (in liquidation) v Fosters Brewing Group Limited [2003] QSC 299

PARTIES :
White Constructions (ACT) Pty Limited (in liquidation)
v
Geoffrey Bernard White (First Defendant)
Travers William Duncan (Second Defendant)
John William Spinks (Third Defendant)
Frank Stratton McAlary (Fourth Defendant)
Michael Frank McAlary (Fifth Defendant)
White Constructions Pty Limited (formerly known as White Constructions Limited) (Sixth Defendant)
Exxon Coal Australia Pty Limited (formerly known as White Industries Limited) (Seventh Defendant)
PDC Constructions Pty Ltd (Eighth Defendant)
White Industries (Qld) Pty Limited (Ninth Defendant)
White Constructions Incentive Share Scheme Pty Limited (Tenth Defendant) [Deleted]
WIL Civil and Mining Engineering Pty Limited (formerly known as Keathson (WA) Pty Ltd and as WIL Plant Hire Pty Limited) (Eleventh Defendant)
White Constructions (NT) Pty Limited (Twelfth Defendant)
Norwest Development Corporation Limited (Thirteenth Defendant) [Deleted]
PDC Plant Hire Pty Ltd (Fourteenth Defendant)
White Constructions (NSW) Pty Ltd (Fifteenth Defendant)
White Property Developments Pty Limited (Sixteenth Defendant)
White Industries Australia Limited (Seventeenth Defendant)

FILE NUMBER(S): SC 50144/02

COUNSEL: S D Epstein SC (Plaintiff)
B W Rayment QC/D T Kell (Defendants)

SOLICITORS: Deacons (Plaintiff)
Mallesons Stephen Jaques (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

14 April 2004 (Revised 15 April 2004)

JUDGMENT

HIS HONOUR:

Introduction

1 In my reasons for judgment given on 25 February 2004, [2004] NSWSC 71, I concluded, at para [554], that the plaintiff's claims against the defendants failed. At para [555], I ordered that the summons be dismissed and that the plaintiff pay the defendants' costs. I reserved liberty to any party to move to vary the costs order. The defendants, by their notice of motion filed on 19 March 2004, move pursuant to order 3.

2 The notice of motion sought by prayer 1, an order that the defendants' costs be assessed on the indemnity basis. That prayer was heard by me today. By consent the hearing of prayers 2 and 3 has been adjourned.

The evidence

3 The defendants relied upon two affidavits sworn by Mr Nicholas Pember Reeves, a solicitor…

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: [2004] NSWSC 303
Decision Date: 14 April 2004

CaseChat Overview and Summary

In the case of White Constructions ACT Pty Ltd (in liq) v White, the dispute arose from the liquidation of a construction company and involved the assessment of indemnity costs incurred by the liquidator. The case was heard in the Supreme Court of the Australian Capital Territory. The liquidator sought to recover substantial indemnity costs, which the defendant argued were excessive and not justified by the nature of the proceedings.

The central legal issue before the court was whether the liquidator had demonstrated that the indemnity costs were necessitated by special or unusual features of the case. The court had to determine whether the defendant had provided sufficient evidence to show that the costs were not justified, and whether there were any principles that precluded the recovery of such costs.

The court found that the liquidator had satisfied the requirements for indemnity costs by demonstrating that the proceedings had special features that justified the costs. The court was satisfied that the costs were reasonable and necessary given the circumstances. The defendant had not successfully argued that the costs were excessive or unjustified on any principle of law. Consequently, the court ruled in favour of the liquidator, confirming that the indemnity costs were properly recoverable.

The court's decision confirmed the liquidator's entitlement to recover the indemnity costs as assessed. The defendant's appeal against the costs order was dismissed, and the liquidator was awarded the costs of the proceedings.

Orders