J Hutchinson Pty Ltd v Contractors Inc Pty Ltd [1995] FCA 677

Federal Court of Australia

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CATCHWORDS PRACTICE AND PROCEDURE - Costs - application for indemnity costs after statutory demand set aside under s.459G of the Corporations Law. Corporations Law ss.459G, 459H Minahcroft Pty. Ltd. v. Allan Richard Taylor (Unreported, Cooper J, 11 April 1994) - Foll. J Hutchinson Pty. Ltd. v. Contractors Incorporated Pty. Ltd. No. QG3010 of 1995 Cooper J., Brisbane, 23 August 1995

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG3010 of 1995 BETWEEN: J HUTCHINSON PTY LTD ACN 009 778 330 Applicant AND: CONTRACTORS INCORPORATED PTY LTD ACN 010 908 059 Respondent JUDGE MAKING ORDER:Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 23 August 1995 MINUTES OF ORDER THE COURT ORDERS THAT: The application for indemnity costs be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG3010 of 1995 BETWEEN: J HUTCHINSON PTY LTD ACN 009 778 330 Applicant AND: CONTRACTORS INCORPORATED PTY LTD ACN 010 908 059 Respondent CORAM: Cooper J. PLACE: Brisbane DATE: 23 August 1995 REASONS FOR JUDGMENT After I gave judgment in this matter setting aside a statutory demand issued by the respondent, an application was made for indemnity costs. I have been referred to a decision of Heerey J in Felkro Nominees Pty. Ltd. v. Autissue Pty. Ltd. (1993) 11 ACLC 1142 which confirms the jurisdiction to award costs where a notice has been successfully set aside. I have also been referred to a decision of Hoffman J in the Chancery Division (Companies Court) in Re A Company [1992] 2 All E.R. 797 which, according to the headnote, held that :- "It is an abuse of process to present a winding up petition against a solvent company as a means to putting pressure on it to pay money which is bona fide disputed, instead of applying for summary judgment ... and the court will in those circumstances issue an injunction restraining presentation of the petition and may penalise the petitioner in costs."

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IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG3010 of 1995 BETWEEN: J HUTCHINSON PTY LTD ACN 009 778 330 Applicant AND: CONTRACTORS INCORPORATED PTY LTD ACN 010 908 059 Respondent JUDGE MAKING ORDER:Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 23 August 1995 MINUTES OF ORDER THE COURT ORDERS THAT: The application for indemnity costs be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG3010 of 1995 BETWEEN: J HUTCHINSON PTY LTD ACN 009 778 330 Applicant AND: CONTRACTORS INCORPORATED PTY LTD ACN 010 908 059 Respondent CORAM: Cooper J. PLACE: Brisbane DATE: 23 August 1995 REASONS FOR JUDGMENT After I gave judgment in this matter setting aside a statutory demand issued by the respondent, an application was made for indemnity costs. I have been referred to a decision of Heerey J in Felkro Nominees Pty. Ltd. v. Autissue Pty. Ltd. (1993) 11 ACLC 1142 which confirms the jurisdiction to award costs where a notice has been successfully set aside. I have also been referred to a decision of Hoffman J in the Chancery Division (Companies Court) in Re A Company [1992] 2 All E.R. 797 which, according to the headnote, held that :- "It is an abuse of process to present a winding up petition against a solvent company as a means to putting pressure on it to pay money which is bona fide disputed, instead of applying for summary judgment ... and the court will in those circumstances issue an injunction restraining presentation of the petition and may penalise the petitioner in costs."

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