In the matter of DSG Holdings Australia Pty Limited [2020] NSWSC 644

Supreme Court New South Wales

Medium Neutral Citation: In the matter of DSG Holdings Australia Pty Limited [2020] NSWSC 644 Hearing dates: 20 May 2020 Decision date: 27 May 2020 Jurisdiction: Equity - Corporations List Before: Black J Decision: Secured Creditors liable for external legal costs incurred by Receivers after termination of receivership to enforce prior judgment amount, but not Receivers' professional fees of attending to enforcement. Parties to submit short minutes of order including as to costs. Catchwords: CONTRACTS — Construction — Whether terms of indemnity deed cover external legal costs incurred after receivership terminates — Where legal costs relate to enforcement of judgment against appointing creditors before receivership terminated — Where indemnity does not contain express temporal limitation.

CONTRACTS — Construction — Whether terms of indemnity and fee deed read together permit recovering of receivers' professional fees for enforcing judgment against creditors — Where enforcement of judgment for benefit of receivers — Whether professional fees are a cost or expense. Legislation Cited: - Bankruptcy Act 1996 (Cth), s 275 - Companies Act 1961 (Cth), s 414 - Companies (New South Wales) Code 1981 (NSW), s 414 - Corporations Act 2001 (Cth), ss 424, 556 Cases Cited: - Andar Transport Pty Ltd v Brambles Limited (2004) 217 CLR 424 - Bell Lawyers v Pentelow [2019] HCA 29 - Commissioner of Taxation v Scully (2000) 201 CLR 148 - Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 - Gippsreal Ltd v Ross [2017] VSCA 257 - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 - O'Grady v The Northern Queensland Co Ltd (1990) 169 CLR 356 - Rinehart v Hancock Prospecting Pty Ltd [2019] HCA 13 - Wang v Farkas (2014) 85 NSWLR 390 Category: Principal judgment Parties: David John Winterbottom (First Plaintiff/First Respondent) Rahul Goyal (Second Plaintiff/Second Respondent) DSG Holdings Australia Pty Ltd (First Defendant/First Applicant) Bicheno Investments Pty Ltd (Second Defendant/Second Applicant) Stock Suppliers Australia Pty Ltd (Third Defendant/Third Applicant) Representation: Counsel: J Williams/E Doyle-Markwick (Plaintiffs/Respondents) J Emmett (Defendants/Applicants)