McLellan, in the matter of The Stake Man Pty Ltd v Carroll (No 2) [2009] FCA 1540

FEDERAL COURT OF AUSTRALIA

McLellan, in the matter of The Stake Man Pty Ltd v Carroll (No 2) [2009] FCA 1540 PRACTICE AND PROCEDURE – costs order – relevant principles – judicial discretion – whether cause for departure from usual rule. Corporations Act 2001 (Cth): ss 588G(2), 588H(2), 588M, 1317S(2) Federal Court of Australia Act 1976 (Cth): s 43 Federal Court Rules: O 62 r15

Ruddock v Vadarlis (No 2) (2001) 115 FCR 229, cited Fetherson v Peninsula Health (No 2) (2004) 137 FCR 262, cited Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622, followed Gribbles Pathology Ltd v Health Insurance Commission (1997) 80 FCR 284, followed Australian Securities Commission v Aust‑Home Investments Ltd (1993) 44 FCR 194, followed

IN THE MATTER OF THE STAKE MAN PTY LTD (IN LIQUIDATION) ACN 006 602 919 ANDREW JAMES McLELLAN (IN HIS CAPACITY AS LIQUIDATOR OF THE STAKE MAN PTY LTD) ACN 006 602 919 and THE STAKE MAN PTY LTD (IN LIQUIDATION) ACN 006 602 919 v ANTHONY PAUL CARROLL

VID 373 of 2007

GOLDBERG J

14 DECEMBER 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 373 of 2007

general division

IN THE MATTER OF THE STAKE MAN PTY LTD (IN LIQUIDATION) ACN 006 602 919 BETWEEN: ANDREW JAMES McLELLAN (IN HIS CAPACITY AS LIQUIDATOR OF THE STAKE MAN PTY LTD)

ACN 006 602 919

First Plaintiff

THE STAKE MAN PTY LTD (IN LIQUIDATION)

ACN 006 602 919

Second Plaintiff

AND: ANTHONY PAUL CARROLL

Defendant

JUDGE: GOLDBERG J

DATE OF ORDER: 14 decEMBER 2009

WHERE MADE: MELBOURNE

THE COURT DECLARES THAT:

1. The defendant has contravened s 588G(2) of the Corporations Act 2001 (Cth) ("the Act") by failing to prevent The Stake Man Pty Ltd (In Liquidation) ("the Company") from incurring debts totalling $356,952.02. 2. Pursuant to s 1317S(2) of the Act, having regard to all the circumstances of the case, the defendant ought fairly to be excused for the contravention of s 588G(2) of the Act. 3. Pursuant to s 1317S(2) of the Act, the defendant be relieved wholly from any liability to pay to the plaintiffs pursuant to s 588M of the Act any amount in respect of the loss and damage suffered by creditors of the Company referred to in the schedule to the amended Statement of Claim herein, a copy of which schedule is annexed as Schedule "A" to this order. THE COURT ORDERS THAT: 4 The defendant pay the plaintiffs' costs of and incidental to the proceeding including any reserved costs, but excluding any costs of and incidental to the interlocutory process filed by the plaintiffs on 12 October 2007 in which the defendant and Louise Margaret Carroll are defendants. 5. There be no order as to the costs of and incidental to the interlocutory process filed on 12 October 2007 including any reserved costs relating thereto. 6. Paragraphs 4 and 5 of the order made on 20 November 2007 be discharged. 7. The undertakings given to the court by the plaintiffs and the defendant on 20 November 2007 be discharged. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.