Deputy Commissioner of Taxation v Monkey's World Pty Ltd, in the matter of Monkey's World Pty Ltd [2020] FCA 493

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Monkey's World Pty Ltd, in the matter of Monkey's World Pty Ltd [2020] FCA 493 File number(s): VID 704 of 2018

Judge(s): O'CALLAGHAN J

Date of judgment: 16 April 2020

Date of hearing: Determined on the papers

Date of last submissions: 15 March 2019

Registry: Victoria

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: No catchwords

Number of paragraphs: 11

Solicitor for the Plaintiff: Craddock Murray Neumann Lawyers

Counsel for the Defendant: Mr P Hackett

Solicitor for the Defendant: Rose Litigation Lawyers

ORDERS VID 704 of 2018 IN THE MATTER OF MONKEY'S WORLD PTY LTD BETWEEN: DEPUTY COMMISSIONER OF TAXATION Plaintiff

AND: MONKEY'S WORLD PTY LTD Defendant

JUDGE: O'CALLAGHAN J DATE OF ORDER: 16 April 2020

THE COURT ORDERS THAT:

1. The defendant pay the plaintiff's costs of the proceeding, fixed in the sum of $2,940.30. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O'CALLAGHAN J: 1 Orders have been made by consent that the plaintiff's application to wind up the defendant be dismissed. 2 The only matter that remains to be determined is the question of costs. 3 The consent order dismissing the plaintiff's application was made in circumstances where the plaintiff chose, it seems at the suggestion of the defendant's director, instead to intervene in Family Court proceedings, which were anticipated to result in the director (the wife in the Family Court proceedings) receiving her share of the matrimonial asset pool, far in excess of the amount of the plaintiff's undisputed debt. 4 After the question of costs was referred to me, the defendant made an application for its costs to be paid by the plaintiff on an indemnity basis, totalling almost $30,000. That is a breathtaking sum, given that the winding up application was resolved not long after it had been commenced, but in any event, that is the order it seeks. 5 The plaintiff says that it is entitled to its costs of $2,940.30, in accordance with the relevant schedule of costs. 6 The defendant relies on three affidavits, of Christine Margaret Basile dated 22 August 2018, Luke Alan Brandon dated 6 December 2018 and another by Stephanie Laura Philippou dated 6 December 2018. 7 The plaintiff relies on an affidavit of Yigu Xia dated 28 February 2019. 8 In my view, there is no possible basis for an order that the defendant be paid its costs, on an indemnity, or any other basis. 9 The simple facts of the matter that the affidavits show are that the debt to the plaintiff was not disputed (so that the presumption of insolvency arose); the plaintiff agreed to dismiss the winding up application in this court, at the defendant's suggestion, so the defendant through its sole director could prosecute its case in Family Court proceedings; and the plaintiff then duly intervened in those proceedings. 10 The only discernible basis for the order sought by the defendant contained in written submissions filed on its behalf is that the agreement to dismiss the proceeding in this court and for the plaintiff to intervene instead in the Family Court, was prompted by the suggestion of the sole director of the defendant. 11 In my view, that is no basis for it to get its costs. Accordingly, an order will be made that the defendant pay the plaintiff's costs of the proceeding, fixed in the sum of $2,940.30. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.