In the matter of Kaloriziko Pty Ltd [2022] NSWSC 474

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Kaloriziko Pty Ltd [2022] NSWSC 474 Hearing dates: Last submissions on costs on the papers, 14 February 2022 Date of orders: 20 April 2022 Decision date: 20 April 2022 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Defendant pay the Plaintiff's costs of the proceedings, as agreed or as assessed. Catchwords: COSTS — Party/Party — Where application to set aside statutory demand did not proceed Cases Cited: - Re Kaloriziko Pty Ltd [2021] NSWSC 1276 Category: Costs Parties: Kaloriziko Pty Ltd (Plaintiff) Calibre Construction Group Pty Ltd (Defendant) Representation: Counsel: M T Fernandes (Plaintiff)

Solicitors: Fortis Law (Plaintiff) One Group Legal Pty Ltd (Defendant) File Number(s): 2021/300663

Judgment

Background 1. By Originating Process filed on 22 October 2021 the Plaintiff, Kaloriziko Pty Ltd ("Kaloriziko"), applied under s 459H and 459J of the Corporations Act 2001 (Cth) to set aside a creditor's statutory demand dated 7 October 2021 ("Demand") served by Calibre Construction Group Pty Ltd ("Calibre"). On 31 January 2022, the Registrar noted that Calibre was required to file and serve evidence by 15 December 2021 and that that evidence had not been filed; extended the time for Calibre to file and serve that evidence to 1 February 2022; and listed the matter in the Corporations Motions List on 7 February 2022. Calibre did not file and serve any evidence and, on 7 February 2022, the Demand issued by Calibre was set aside by consent. 2. At the parties' request, the question of costs was reserved to be determined on the papers. Kaloriziko served submissions as to costs on 14 February 2022. Calibre did not lead any evidence or make any submissions as to costs when due, or after my Associate followed up and again requested such submissions. 3. Mr Fernandes, who appears for Kaloriziko, points to the fact that, in a previous application by Kaloriziko to set aside a previous creditor's statutory demand issued by Calibre, Calibre was ordered to pay Kaloriziko's costs after it had there also failed to put on its evidence in support of the Demand and capitulated by agreeing that the creditor's statutory demand be set aside: Re Kaloriziko Pty Ltd [2021] NSWSC 1276. Mr Fernandes notes that the Court there accepted a submission that Calibre should pay costs on the ordinary basis, because it had effectively surrendered after litigating for some time. He submits, and I accept, that the position here is indistinguishable from that which arose in that earlier decision. 4. For these reasons, I order that Calibre Construction Group Pty Ltd pay the costs of Kaloriziko Pty Ltd of the proceedings, as agreed or as assessed.