In the matter of SX Projects Pty Ltd [2022] NSWSC 1782

Supreme Court New South Wales

Medium Neutral Citation: In the matter of SX Projects Pty Ltd [2022] NSWSC 1782 Hearing dates: On the papers; last submissions 15 December 2022 Date of orders: 23 December 2022 Decision date: 23 December 2022 Jurisdiction: Equity - Corporations List Before: Black J Decision: Decline to vary earlier costs order against the Plaintiff on an ordinary basis. Catchwords: COSTS – Whether application for indemnity costs open in the circumstances – Whether order for costs should be made against the Plaintiff's solicitor. Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: - Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 - Nadarajapillai v Naderasa (No 2) [2015] NSWCA 209 - NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838 - Re Indoor Climate Technologies Pty Ltd [2019] NSWSC 356 - White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169; [1998] FCA 806 Category: Costs Parties: Karen Battaglia (Plaintiff) SX Projects Pty Ltd (in liq) (Defendant) Representation: Counsel: K Ngo (Solicitor) (Plaintiff) D Stack (Defendant)

Solicitors: Brown Ward King (Plaintiff) Ashurst (Defendant) File Number(s): 2022/309225

Judgment

Background to the application 1. By Originating Process filed on 17 October 2022 the Plaintiff, Mrs Karen Battaglia sought leave under s 471B of the Corporations Act 2001 (Cth) to proceed against SX Projects Pty Ltd (in liq) ("Company"), to claim an alleged debt in the amount of $1,040,070, pursuant to a purported Deed of Loan dated 10 March 2014. By my judgment delivered on 21 November 2022 ("earlier judgment"), I dismissed that application and ordered that Mrs Battaglia pay the costs of the proceedings, as agreed or as assessed. I also made further orders, at the request of the liquidator of SX Projects, to progress a determination of a claim for a costs order against the solicitors who acted for Mrs Battaglia in the application. 2. By his submissions dated 21 November 2022, the liquidator sought an order that Mrs Battaglia pay SX's costs of the Originating Process filed on 17 October 2022 on an indemnity basis, as agreed or as assessed ("Indemnity Costs Order"). I was not asked to make the Indemnity Costs Order when I had made the costs order on an ordinary basis on 21 November, and I was also not asked to and did not reserve leave to reopen that question and agitate a later application for an Indemnity Costs Order. It seems to me that it would not be appropriate to deal with an application that falls outside the scope of the leave that was reserved to the liquidator, and I do not do so. 3. The liquidator also now seeks an order that Mrs Battaglia's solicitor indemnify the Company against the Indemnity Costs Order. While I had reserved leave for submissions as to a costs order against the solicitor, the order now sought by the Liquidator has the obvious difficulty that it is premised on an Indemnity Costs Order that was not made on 21 November and will not be made now. I will, however, deal with the question whether an order for costs should be made against the solicitor, at least on the ordinary basis, for completeness.