Kookaburra Educational Resources Pty Limited v MacGear Limited Partnership trading as MacGear Australia, in the matter of Kookaburra Educational Resources Pty Limited (No 2) [2021] FCA 1049

Federal Court of Australia

Kookaburra Educational Resources Pty Limited v MacGear Limited Partnership trading as MacGear Australia, in the matter of Kookaburra Educational Resources Pty Limited (No 2) [2021] FCA 1049 File number: NSD 221 of 2021

Judgment of: HALLEY J

Date of judgment: 31 August 2021

Catchwords: COSTS – whether successful party entitled to indemnity costs pursuant to r 40.02 of the Federal Court Rules 2011 (Cth) – where application to set aside statutory demand filed and served outside statutory period – whether pursuit of application characterised as relevant delinquency by unsuccessful party – whether application objectively certain or doomed to fail – indemnity costs awarded

Legislation: Corporations Act 2001 (Cth) ss 9, 459G Service and Execution of Process Act 1992 (Cth) ss 3, 9, 13, 15, 16 Federal Court Rules 2011 (Cth) r 40.02 Service and Execution of Process Regulations 2018 (Cth) reg 6, Sch 1

Cases cited: Australian Civil Infrastructure Group Pty Ltd v Murphy, McCarthy & Associates Pty Ltd [2012] NSWSC 133 Carinda Homes Pty Ltd v Highlands Austral Pty Ltd, in the matter of Carinda Homes Pty Ltd [2003] FCA 275 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225; [1993] FCA 801 David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265; [1995] HCA 43 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 364 H Lal & Associates Pty Limited v Patel, in the matter of H Lal & Associates Pty Limited [2009] FCA 1551 In the matter of AXL Financial Pty Ltd [2019] NSWSC 867 In the matter of Urban Solutions Group Pty Limited [2015] NSWSC 1940 Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11