In the matter of Nutrimonde Pty Ltd [2024] NSWSC 806

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Nutrimonde Pty Ltd [2024] NSWSC 806 Hearing dates: On the papers Date of orders: 28 June 2024 Decision date: 28 June 2024 Jurisdiction: Equity - Corporations List Before: McGrath J Decision: (1) Leave granted to the plaintiff to discontinue the proceedings. (2) No order as to costs with the intent that each party shall bear their own. Catchwords: CORPORATIONS — winding up — failure to comply with statutory demand — presumption of insolvency — evidence as to defendant's solvency filed at various times including day before hearing — plaintiff then sought leave to discontinue the substantive proceedings — COSTS — UCPR r 42.19 — plaintiff seeks departure from ordinary position in r 42.19 — question of costs not to be determined by conducting hypothetical hearing of the merits — outcome on merits not capable of prediction — parties acted reasonably in commencing and defending the proceedings — defendant seeks indemnity costs on basis of Calderbank offer — no basis for indemnity costs as Calderbank offer not made to plaintiff and could not be unreasonably declined — costs lie where they fall — HELD — no order as to costs Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 98 Corporations Act 2001 (Cth), ss 459C, 459P Evidence Act 1995 (NSW), s 69(3) Uniform Civil Procedure Rules 2005 (NSW), rr 12.1, 42.1, 42.19, 42.20 Cases Cited: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109 Cockatoo Ridge Wines Ltd v Naked Wines Direct Pty Ltd [2006] NSWSC 1074 Deputy Commissioner of Taxation v De Simone Consulting Pty Ltd [2007] FCA 548 Deputy Commissioner of Taxation v Rhodium Australia Pty Ltd [2011] FCA 988 Fordyce v Fordham (2006) 67 NSWLR 497; [2006] NSWCA 274 Lavercombe v Auscott (2006) 58 ACSR 586; [2006] NSWSC 867 Nadilo v Eagleton [2021] NSWCA 232 Nicolai v Indochina Medical Co Pty Ltd, in the matter of Indochina Medical Co Pty Ltd (No 2) [2013] FCA 180 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Re Lanaghan Bros Ltd [1977] 1 All ER 265 Re Megaward Pty Ltd [2018] NSWSC 444 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Re Nutek Constructions Pty Ltd [2017] NSWSC 451 Rhodium Australia Pty Ltd v Deputy Commissioner of Taxation [2012] FCAFC 17 SMEC Testing Services Pty Ltd v Campbelltown City Council [2000] NSWCA 323 Walton v Commonwealth Bank of Australia [2020] NSWCA 191 Category: Costs Parties: J. Rettenmaier & Sӧhne GmbH + Co KG (Plaintiff) Nutrimonde Pty Ltd (Defendant) Representation: Counsel: A Spencer (Plaintiff) J Stephenson (Defendant)