McMillan Investment Holdings Pty Ltd v Morgan (No 2) [2023] FCAFC 41

Federal Court of Australia

McMillan Investment Holdings Pty Ltd v Morgan (No 2) [2023] FCAFC 41 File number: NSD 1376 of 2021

Judgment of: YATES, BEACH AND MARKOVIC JJ

Date of judgment: 17 March 2023

Catchwords: COSTS – costs of the proceeding before the primary judge – where the appellant successfully appealed against the making of a pooling order under s 579E(1) of Corporations Act 2001 (Cth)– where the appellant had raised and failed on various subsidiary issues in the proceeding before the primary judge – where the appellant had not raised any grounds of appeal in respect of those subsidiary issues

Legislation: Corporations Act 2001 (Cth) ss 579E, 601AH

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 21

Date of last submission/s: 9 March 2023

Date of hearing: Determined on the papers

Counsel for the Appellant: Mr J Svehla

Solicitor for the Appellant: Somerset Ryckmans

Counsel for the Respondents: Mr M Pesman SC and Mr M Rose

Solicitor for the Respondents: ERA Legal

ORDERS NSD 1376 of 2021

BETWEEN: MCMILLAN INVESTMENT HOLDINGS PTY LTD Appellant

AND: JOHN MAXWELL MORGAN First Respondent

SYDNEY ALLEN PRINTERS PTY LTD (IN LIQUIDATION) Second Respondent

SYDNEY ALLEN MANUFACTURING PTY LTD (IN LIQUIDATION) (and another named in the Schedule) Third Respondent

order made by: YATES, BEACH AND MARKOVIC JJ DATE OF ORDER: 17 MARCH 2023

THE COURT ORDERS THAT:

1. Orders 4 and 5 made in proceeding NSD 75 of 2021 (the proceeding below) on 2 December 2021 be set aside. 2. The respondents pay 50% of the appellant's costs of the proceeding below. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.