Supreme Court New South Wales Medium Neutral Citation: McMillan v Coolah Home Base Pty Ltd (No 5) [2022] NSWSC 1589 Hearing dates: 7 July 2022 (final orders); written evidence and submissions ending 5 August 2022 (costs) Date of orders: 8 July, 22 November 2022 Decision date: 22 November 2022 Jurisdiction: Equity Before: Parker J Decision: See [56]-[57] Catchwords: COSTS – multiple claims against multiple defendants – plaintiffs partially successful against some defendants only – costs apportioned between claims – percentage costs order refused CORPORATIONS – oppression – remedies – winding up order made – additional declarations and orders for accounting to company refused – additional orders granting leave to bring derivative action refused Legislation Cited: Civil Procedure Act 2005, s 101 Corporations Act 2001, ss 233, 237, 579E Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Akierman Holdings Pty Limited v Akerman (No 3); In the matter of Akierman Holdings Pty Limited (No 2) [2021] NSWSC 869 Carter v Greenwoods & Freehills Pty Ltd [2014] NSWSC 917 Gillespie v Gillespies Cranes Nominees Pty Ltd [2022] NSWSC 1184 McMillan v Coolah Home Base Pty Ltd (No 4) [2022] NSWSC 584 Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Scarel Pty Ltd v City Loan & Credit Corporations Pty Ltd (1988) 17 FCR 344 Southern Oil Refining Pty Ltd v Hydrodec Australia Pty Ltd (No 2) [2021] NSWSC 336 Trentelman v The Owners – Strata Plan 76700 (No 3); The Owners – Strata Plan 76700 v Trentelman (No 3) [2021] NSWSC 578 Category: Costs Parties: Geoffrey Ian McMillan (First Plaintiff) David Arthur Darch (Second Plaintiff) Helen Dawn Waugh (Third Plaintiff) Margaret Joy Vale (Fourth Plaintiff) Jill Cook (Fifth Plaintiff) Lee Marilyn Tait (Sixth Plaintiff) Jennifer Sue Axtell (Seventh Plaintiff) Sietske Elisabeth Brown (Eighth Plaintiff) James Terence James (Ninth Plaintiff) Neville John Kelly (Tenth Plaintiff) Susan Anne Kelly (Eleventh Plaintiff) Christine Margaret McMillan (Twelfth Plaintiff) Janne Marnie Robertson (Thirteenth Plaintiff) John Daniel Sheahan (Fourteenth Plaintiff) Richard Jim Squire (Fifteenth Plaintiff) Susan Janet Squire (Sixteenth Plaintiff) Leslie Townsend (Seventeenth Plaintiff) Allana Mary Townsend (Eighteenth Plaintiff) Coolah Home Base Pty Limited (First Defendant) Coolah Tourist Park Pty Limited (Second Defendant) Janet Marilyn Kelly (Third Defendant) Graeme George Booker (Fourth Defendant) Cameron Hamish Gray (Fifth Defendant) Ronald Dean-Willcocks (Sixth Defendant) Home Base Solutions Pty Limited (Seventh Defendant) Representation: Appearances: P Vogel (solicitor) (Plaintiffs) A Macauley (First, Second, Third, Fourth and Seventh Defendants) A Harding SC (Fifth and Sixth Defendants) Solicitors: The Peoples' Solicitors (Plaintiffs) Bridges Lawyers (First, Second, Third, Fourth and Seventh Defendants) Brown Wright Stein Lawyers (Fifth and Sixth Defendants) Appearances: P Vogel (solicitor) (Plaintiffs) A Macauley (Second, Third, Fourth and Seventh Defendants) A Harding SC (Fifth and Sixth Defendants) Solicitors: The Peoples' Solicitors (Plaintiffs) Bridges Lawyers (Second, Third, Fourth and Seventh Defendants) Brown Wright Stein Lawyers (Fifth and Sixth Defendants) File Number(s): 2020/44327 Publication restriction: Nil Judgment 1. On 13 May, I delivered judgment in these proceedings, setting out my conclusions on the plaintiffs' claims: McMillan v Coolah Home Base Pty Ltd (No 4) [2022] NSWSC 584. Following argument on 7 July, I made rulings about the disputed aspects of the orders to be made to give effect to my May judgment. On 8 July I made orders in accordance with a minute of order submitted by the parties in accordance with my rulings. In this judgment I deal with the costs of the proceedings. I also give reasons for my refusal on 7 July to make additional orders sought by the plaintiffs. 2. This judgment assumes familiarity with my May judgment which I will refer as "J1". It also uses abbreviations and terms used in my May judgment. Background, procedural history and decision 1. The claims in the proceedings concerned the affairs of Coolah Home Base Pty Limited ("CHB"), the first defendant. CHB was established by Ms Janet Kelly and Mr Graeme Booker, who are its directors. They are the third and fourth defendants and I refer to them collectively as "the Directors". 2. CHB was established for the purpose of acquiring a caravan park at Coolah in central western New South Wales ("the Park"), to be used as a "home base" for "grey nomads" (J1 [2]-[3]). CHB's constitution provided for the Park to be held and operated on a company title basis. The constitution gave shareholders rights of occupation of "their" sites, and obliged them to pay fees to defray the costs of operating the Park. The Park could not be sold without agreement from 80 per cent of shareholders (J1 [118]). 3. The plaintiffs were all purchasers of shares in CHB which entitled them to "ownership" of sites in the Park which were approved for long-term occupation. They either "purchased" their sites with a demountable cabin on it, or installed a demountable cabin themselves. 4. As directors, Ms Kelly and Mr Booker controlled the corporate affairs of CHB. They established a management company which they owned and controlled, Home Base Solutions Pty Limited ("HBS"), as the "operating entity" for the Park (J1 [3]-[5]). HBS is the seventh defendant. 5. Disputes arose between some of the plaintiffs on the one hand and the Directors on the other about the management of the Park and the corporate affairs of CHB. This resulted in litigation in the Corporations List of this Court between two of the plaintiffs and CHB. Following a hearing but before judgment was delivered in the litigation, the Directors appointed statutory administrators to CHB ("the Administrators"). They are the fifth and sixth defendants. 6. At the time of the Administrators' appointment, the Directors and their associates were, or at least claimed to be, the major creditors of CHB. The Directors promoted a Deed of Company Arrangement under which CHB would sell the Park to a new company, financed and controlled by them. The Deed of Company Arrangement was presented to a meeting of creditors of CHB and approved. The purchasing entity was a company called Coolah Tourist Park Pty Limited ("CTP"). It is the second defendant. 7. Following the transfer, the proceeds of the sale were applied by the Administrators towards payment of their fees and partial payment of the debts claimed by the Directors and their associates. Control of CHB was returned to the Directors on completion of the statutory administration. The company is effectively a shell. 8. CTP assumed ownership and management of the Park. In that capacity it was of course not bound by any of the provisions in CHB's constitution. CTP was prepared for the plaintiffs to stay in the Park, but effectively as tenants. 9. For the purposes of the proceedings, the defendants fell into two groups. Ms Kelly, Mr Booker, CHB, HBS and CTP were commonly represented. I referred to them in the May judgment as the "Kelly-Booker parties". The Administrators had their own representation. 10. The course of the proceedings leading up to the trial is set out at J1 [66]-[84]. The trial itself was complex and lengthy. The principal contributing factor to its length was that the plaintiffs all (or virtually all) gave evidence and were extensively cross-examined, principally on the circumstances in which they purchased their shares in CHB. The hearing was also lengthened by several unsuccessful attempts to expand the plaintiffs' case beyond the scope of what had been pleaded. 11. In total, the trial took fourteen days. The plaintiffs' evidence occupied six days. The evidence of the Directors, who were also extensively cross-examined, took four days. One of the Administrators gave evidence on their behalf; his evidence took one day. One day was spent on the tender of, and objections to, affidavits and documents. Following lengthy written submissions from the parties, final oral submissions occupied two days. 12. The plaintiffs' prayers for relief were very extensive. For convenience, in my judgment I grouped them into six claims which I summarised at J1 [14]-[18]. I repeat the summary below. 1. First, the plaintiffs claim equitable ownership interests in the sites which they occupy at the Park. They allege that when purchasing their shares in CHB, they were promised interests in the sites themselves. They contend that they are entitled to relief by way of specific performance or equitable (proprietary) estoppel, and that this relief is available against CTP (if they fail in their application to have the transfer of the Park to CTP rescinded, to which I will refer in a moment). 2. Secondly, the plaintiffs seek orders rescinding the transfer of the Park to CTP. They allege that they are entitled as shareholders of CHB to have the transfer set aside on the ground of wrongful conduct by the Directors. 3. Thirdly, the plaintiffs seek declarations that, as against both CHB and CTP, their cabins are chattels rather than fixtures. 4. Fourthly, the plaintiffs allege that in conducting the affairs of CHB the Directors have breached their directors' duties and oppressed CHB's shareholders. The complaint includes the diversion of income and assets of CHB to HBS and the placement of CHB in voluntary administration. Under CA s 233, the plaintiffs seek orders rescinding the transfer of the Park as between CHB and CTP (if they are unable to obtain that relief directly as shareholders), orders removing the Directors from control of CHB, and orders for compensation to undo the effect of the Directors' breaches. 5. Fifthly, the plaintiffs make monetary claims for damages or compensation (at general law or under statute) on various bases against the Kelly-Booker parties. Some of these claims are made as an alternative to the claim for recognition of an equitable proprietary interest in the plaintiffs' sites. Others are made as an alternative to the plaintiffs' application for rescission orders and other relief against oppression. Some are independent. The heads of damage alleged by the plaintiffs include both financial losses and harm in the form of disappointment and distress. 6. Finally, the plaintiffs make monetary claims for damages or compensation against the Administrators. Again, some claims are made as an alternative to the plaintiffs' application for rescission orders and other relief against oppression, and other claims are independent. 1. CTP made a cross-claim against some of the plaintiffs for outstanding site fees. This cross-claim arose out of an undertaking which was given at an earlier stage of the proceedings. By the time the case came on for hearing, it was agreed between the parties that the cross-claim should be dismissed. On 4 July I made a consent order formally dismissing the cross-claim and reserving the question of costs. 2. As I will describe in more detail in a moment, I found that the conduct of CHB's affairs by Ms Kelly and Mr Booker had been oppressive. But all of the plaintiffs' other claims against the Kelly-Booker parties failed, in most cases on multiple grounds. The plaintiffs' claim against the Administrators also comprehensively failed. Oppression relief 1. The parties agreed that, as a consequence of my findings, the claims against the Administrators had to be dismissed. So too the non-oppression claims by the plaintiffs against the Kelly-Booker parties. The freezing orders which had earlier been made against the Kelly-Booker parties also had to be discharged. The question for debate was what orders should be made as a result of my findings of oppressive conduct against the Directors. 2. On the plaintiffs' oppression claims, I found that the Directors had excluded the plaintiffs, as shareholders in CHB, from any real involvement in the direction of the company. This was underpinned in part by the arrangements which the Directors put in place between CHB and HBS. Under those arrangements, all of the income from the Park and the costs of running it, were put through the accounts of HBS, purportedly pursuant to a management agreement between the two companies. Any surplus was retained by HBS. 3. These arrangements enabled the Directors (or so they thought) to present to the shareholders accounts which contained no detail of income or expenditure, and the Directors disclosed only such information about those matters as they chose to. This was one of the main grievances which led to the institution of the Corporations List proceedings, and the Directors continued their pattern of conduct by seeking, through their solicitors, to place as many obstacles as they could in the way of the then plaintiffs obtaining the information sought. 4. The plaintiffs also complained about a share issue which the Directors caused CHB to undertake in 2014. The Directors caused about 30 per cent of the shares in CHB to be issued to HBS for a total consideration of just over $10,000. These shares related to short term sites, rather than cabin sites, and were less valuable. The plaintiffs' evidence did not demonstrate how much the shares were in fact worth. But on any view, they cemented the Directors' control of CHB and no opportunity had been afforded by the Directors to any other shareholder to take them up. I concluded that this transaction was also oppressive. 5. In their statement of claim, the plaintiffs sought orders removing the Directors from office and rescinding the share issue. But this relief was not appropriate (J1 [487], [524]). In particular, the transfer could not be rescinded because the shares had subsequently been transferred from HBS to another Kelly-Booker company, Residential Cluster Pty Limited ("RC") and RC had not been joined as a party to the proceedings. 6. So far as the future management of the company was concerned, the only available option appeared to be to order a winding up. But that had not been sought by the plaintiffs and they had not complied with the formalities necessary to obtain such an order. 7. In final submissions, counsel for the plaintiffs sought orders that HBS account to CHB for the income which have been channelled through it as a result of the management arrangements adopted by the Directors. But no such relief had been sought in the statement of claim. It was far too late for the Court to be asked to determine the state of accounts between HBS and CHB. In any event, that could be left to be dealt with by a liquidator, if one was appointed (J1 [507]). 8. In the course of submissions, counsel made numerous other allegations of conduct by the Directors which was alleged to have been oppressive. These included alleged oppression in incurring costs to defend the Corporations List proceedings, and in deciding to appoint the Administrators. Some of the allegations were misconceived, but there were others which might have had substance but which had not been pleaded. Again, relief could not be granted in the proceedings but these matters could be investigated by a liquidator if appointed. 9. The upshot was that, although I had found that the Directors have behaved oppressively, none of the relief claimed was appropriate. But rather than dismissing the proceedings, I gave the plaintiffs an opportunity to consider whether they wished to apply for a winding up order. Eventually, the plaintiffs elected to do so and in the end I did not understand counsel for the Kelly-Booker parties to resist that order. The orders made on 8 July included orders permitting the plaintiffs to amend their statement of claim so as to seek the winding up of CHB, and orders appointing Mr Aaron Lucan as liquidator. 10. At the hearing on 7 July, Mr Vogel, for the plaintiffs, sought additional orders by way of relief against oppression. I declined to make those orders, and now give my reasons for my ruling. 11. Firstly, Mr Vogel sought declarations that the Directors had breached their duties in a way which was oppressive. But I saw no need to make declarations of this type. They were not necessary to give effect to my conclusions, which were adequately covered by the making of a winding up order under s 233. Declarations as to the elements of a cause of action are usually unnecessary. If the substantive relief is granted by the Court (for example, damages), then there will be an issue estoppel as to all elements of the cause of action (see Gillespie v Gillespies Cranes Nominees Pty Ltd [2022] NSWSC 1184 at [116]). This principle applies a fortiori in the present case where the findings were only evidentiary. 12. There was a further problem. The declarations sought by the plaintiffs did not address my findings of oppression and were directed towards other causes of action that might be available against the Directors. This would have been an inappropriate use of the declaratory power. If those causes of action are to be pursued, substantive relief should be sought against the Directors in separate proceedings brought on the instructions of the liquidator. 13. Secondly, Mr Vogel sought "remedies to end the oppression" which included orders for RC to be joined to the proceedings and for the Directors to be restrained from being directors of CHB. But this was effectively a repetition of submissions which had been made at trial and which I had rejected (see [21] above). 14. Thirdly, Mr Vogel pressed for orders "for recovery of losses" which included an order under s 237 of the Corporations Act granting leave for the plaintiffs to commence derivative proceedings on behalf of CHB. But it was not appropriate, once a liquidator was to be appointed, to grant leave to bring derivative proceedings on behalf of CHB. Any such proceedings could, and should, be brought by the liquidator (see Scarel Pty Ltd v City Loan & Credit Corporation Pty Ltd (1988) 17 FCR 344 at 350). 15. Fourthly, Mr Vogel sought two orders relating to the appointment of the liquidator. First, for the purposes of the liquidation, Mr Vogel submitted that CHB and HBS should be treated as a pooled group under s 579E of the Corporations Act. Second, Mr Vogel sought for the liquidator to have access to all the financial records of HBS under s 233(1)(j) of the Corporations Act. 16. These further orders were not justified. To treat CHB and HBS as a pooled group would have required a winding up order against HBS and no such order had been made (or asked for). Any question of access to records was a matter for the liquidator. Costs between the plaintiffs and the Kelly-Booker parties 1. The appointment of a liquidator to CHB meant that any claim by the plaintiffs for an order for costs against CHB was stayed. No application was made on behalf of the plaintiffs for leave to proceed. For his part, the liquidator did not seek the costs for CHB's successful defence of the claim. 2. The question of costs as between CHB and the plaintiffs thus dropped out of the picture. The solicitors previously retained by the Directors ceased to act for CHB. In what follows, reference to the "Kelly-Booker parties" no longer includes CHB. 3. As I have summarised above, the findings in my May judgment led to a complex situation where the plaintiffs succeeded on some aspects of the case and the Kelly-Booker parties succeeded on other aspects. Because of this, I indicated to the parties that, unless anyone contended to the contrary, I would follow the approach I have taken in previous costs judgments where there was a "mixed" outcome: see Akierman Holdings Pty Limited v Akerman (No 3); In the matter of Akierman Holdings Pty Limited (No 2) [2021] NSWSC 869; Southern Oil Refining Pty Ltd v Hydrodec Australia Pty Ltd (No 2) [2021] NSWSC 336; and Trentelman v The Owners – Strata Plan 76700 (No 3); The Owners – Strata Plan 76700 v Trentelman (No 3) [2021] NSWSC 578. 4. At the hearing, neither sides objected to me taking this approach in the present proceedings. I will deal with the costs as between the plaintiffs and the Kelly-Booker parties on this basis. 5. On behalf of the plaintiffs, Mr Vogel's primary position was that the plaintiffs were successful in the proceedings; he relied on the general rule that costs should follow the event: Uniform Civil Procedure Rules 2005, r 42.1. Mr Vogel submitted that, but for the commencement of proceedings, the plaintiffs would be destitute. He submitted that a "broad-based" approach should be taken, and the Court ought not to "split costs up" in circumstances where there had been findings of misconduct and oppression by the Directors. 6. In the alternative, Mr Vogel proposed to apportion percentages of costs that could be determined according to whether the plaintiffs had succeeded or failed to establish each claim in the proceedings. Mr Vogel identified three "claims" made by the plaintiffs: first, an equitable interest in the Allotments (claim (a)); second, post-sale conduct of CTP (claim (b)); and third, oppression (claim (c)). He proposed that the plaintiffs pay CHB and CTP their costs for claim (a), and CTP for their costs for claim (b). But the Directors should pay the plaintiffs 60 per cent of their costs for claim (c). In the alternative, he sought an order that the Kelly-Booker parties and the Directors pay the plaintiffs 20 per cent of their total costs. 7. Mr Macauley, for the Kelly-Booker parties, sought an order for the plaintiffs to pay CTP's and HBS's costs of the plaintiffs' proceedings as agreed or assessed. He also sought an order that the plaintiffs pay 80 per cent of the Directors' costs of the plaintiffs' proceedings as agreed or assessed. In dealing with the cross-claim, Mr Macauley submitted that there should be no order as to costs, and that the parties to the cross-claim should bear their own costs. Mr Macauley proposed that this could then be further simplified by ordering that the plaintiffs pay 90 per cent of CTP's, HBS's, and the Directors' costs of the plaintiffs' proceedings as agreed or assessed. 8. I do not think it is appropriate in the present case to order costs by reference to percentage of the total costs incurred. This might be reasonable in an appeal where the time spent on issues in submissions and at the hearing might be expected to correspond to the total costs incurred on those issues in the proceedings. But in a case such as the present the costs associated with preparing the different claims for hearing cannot be determined with any pretence of accuracy from the Court's observations of what happened at trial, and any percentage figure that might be fixed by the Court would be no more than a guess (Akierman at [122]-[124]). The problem is particularly acute so far as the Kelly-Booker parties are concerned, because on no view should the costs order in their favour include any of the costs referable to the claims against CHB. Costs between the plaintiffs and the Directors 1. The plaintiffs succeeded in establishing their oppression claim against the Directors, but that was their only success. On the approach I propose to take, the plaintiffs should recover the costs they would have incurred had the proceedings been limited to the oppression claim. With the benefit of hindsight, a case in chief could have been presented which was largely based on matters of record, leaving the Directors' explanations to be challenged in cross-examination. The plaintiffs' very extensive evidence about the circumstances in which they purchased their shares formed no part of the oppression case. 2. The plaintiffs will therefore have their costs on the oppression claim, but I will not take a "broad-based approach" as sought by Mr Vogel. The orders will also provide for the plaintiffs to pay the costs incurred by the Directors which were solely referable to their defence of the non-oppression claims. Costs between the plaintiffs and CTP and HBS 1. In my May judgment, I found that the plaintiffs failed on all their claims for relief against CTP and HBS. Mr Macauley submitted that the outcome of the various events against CTP and HBS was "total failure". I accept this submission. 2. There will be an order for the plaintiffs to pay HBS's costs of the proceedings against it. There will also be an order providing for the plaintiffs to pay CTP's costs of the proceedings against it but not the costs of its cross-claim which I discuss below. Costs of the cross-claim 1. Mr Vogel submitted that CTP should pay the cross-defendants' costs. Mr Macauley submitted that no order as to costs should be made for the cross-claim and that the parties to the cross-claim should bear their own costs. 2. In support of this submission, Mr Macauley relied on the principle laid down by McHugh J in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 which deals with costs when there has not been a hearing on the merits. In that decision, his Honour said (at 624-25) (citations omitted): In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extracurial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. … If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. This approach has been adopted in a large number of cases. 1. Mr Macauley submitted that CTP did not act unreasonably in bringing the cross-claim. Nor was it a situation where CTP "effectively surrendered" its adopted position (see Carter v Greenwoods & Freehills Pty Ltd [2014] NSWSC 917 at [11]). 2. The cross-claim was required because of the cross-defendants' February 2020 undertaking to the Court to pay CTP the amounts owing under their residential site agreements and their failure to do so. Mr Macauley submitted that the cross-claim was abandoned because the Court released the parties from the undertaking and a decision by NCAT on 5 July 2021 determined the rights of the parties to pay the site fees. These events overtook the action and CTP acted reasonably in not pursuing the cross-claim. 3. Mr Vogel submitted that CTP had "effectively surrendered". The plaintiffs had insisted that their residential site agreements had not been terminated and the site fees payable were those set out in the agreements. Further, he submitted that the 5 July NCAT decision confirmed that the residential site agreements were still in force and that the residents were only required to pay the amounts under those agreements. CTP therefore surrendered the cross-claim "because it was doomed". 4. In that decision, NCAT decided not to make orders for CHB to perform the residential site agreement. It directed HBS, CTP and the Directors to perform their contracts with the applicants and for them to retract statements that the applicants must sign new residential site agreements. 5. I do not think CTP's cross-claim was, as Mr Vogel submitted, "doomed". Nor was it unreasonable for CTP to bring the cross-claim when it did. I accept that by the time of the hearing, the cross-claim no longer needed to be considered due to the Court releasing the parties from the undertaking and the findings in the 5 July NCAT decision. Clearly, the events overtook the action by the time of the hearing and it was reasonable for CTP not to pursue the cross-claim further. 6. I will make no orders as to costs on the cross-claim with the parties to the cross-claim to bear their own costs. Costs between the plaintiffs and the Administrators 1. It was common ground between the parties that the result of the plaintiffs' failure against the Administrators, the plaintiffs had to pay the Administrators' costs of the proceedings, at least on an ordinary basis. But Mr Harding, for the Administrators, foreshadowed a claim for indemnity costs from 14 August 2021. The plaintiffs agreed to orders for the first to sixth plaintiffs to pay the Administrators' costs on a party-party basis up to and including 28 April 2020 (the other plaintiffs were not joined until then) and thereafter for all the plaintiffs to pay the Administrators' costs of the proceedings on a party-party basis up to and including 13 August 2021, and I made these orders on 8 July. 2. In his written submissions, Mr Harding contended that, having regard to the outcome of the plaintiffs' claim against the Administrators, they should pay the Administrators' costs of the proceedings on and from the final pre-trial directions date, 14 August 2021, on an indemnity basis. Mr Harding also sought an order for interest on costs. 3. Mr Vogel elected not to reply to the Administrators' indemnity costs application. I therefore accept Mr Harding's submission and will make the indemnity costs order which is sought. But under s 101(4) of the Civil Procedure Act 2005, as a default, interest on costs is payable under an order for the payment of costs. The provision applies to proceedings commenced after November 2015 (when the provision was amended) as these are. It is therefore unnecessary to make the order sought by the Administrators for interest on costs. Orders 1. The orders of the Court on 8 July were (omitting the costs timetable): 1. Order leave be granted to the Plaintiffs to file the Fourth Amended Statement of Claim (4ASOC) in the form attached to these orders, such order being made without the consent or opposition of the first to fourth and seventh defendants. 2. Order pursuant to s 233(1)(a) of the Corporations Act 2001 (Cth) that the first defendant be wound up, such order being made without the consent or opposition of the first to fourth and seventh defendants. 3. Order Aaron Lucan be appointed liquidator of the first defendant. 4. Order that the plaintiffs' claim otherwise be dismissed as against the first to fourth and seventh defendants. 5. Release the first to fourth and seventh defendants from their undertakings to the Court: 1. as recorded in the Orders of the Court made on 28 April 2020 (to the extent such undertakings remain in place); and 2. as recorded in the Orders of the Court made on 29 January 2021. 1. Order that all extant orders freezing or impairing the first to fourth and seventh defendants from dealing with their assets be discharged forthwith. 2. Order that the First to Sixth Plaintiffs pay the Fifth and Sixth Defendants' costs of the proceedings on a party-party basis up to and including 28 April 2020 as agreed or assessed. 3. Order that the Plaintiffs pay the Fifth and Sixth Defendants' costs of the proceedings on a party-party basis from 29 April 2020 up to and including 13 August 2021 as agreed or assessed. 1. The orders of the Court I now make on costs are: 1. The plaintiffs' costs of their claims against the third and fourth defendants, other than costs solely referable to the plaintiffs' claims other than claims under Part 2F.1 of the Corporations Act 2001 (Cth) ("the non-oppression claims"), be paid by the third and fourth defendants. 2. The second defendant's costs of the plaintiffs' claims against it be paid by the plaintiffs. 3. The third and fourth defendants' costs of the plaintiffs' claims against them, to the extent solely referable to the non-oppression claims, be paid by the plaintiffs. 4. The fifth and sixth defendants' costs of the plaintiffs' claims against them on and from 14 August 2021 be paid by the plaintiffs on an indemnity basis. 5. The seventh defendant's costs of the plaintiffs' claims against it be paid by the plaintiffs. 6. No order, as between the parties to the second defendant's cross-claim, as to the costs solely referable to that cross-claim. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2022