Brien & 1 Ors v Australasian Memory & 1 Ors [2000] NSWSC 333

Reported Decision : [2000] 34 ACSR 158

New South Wales Supreme Court

CITATION : Brien & 1 Ors v Australasian Memory & 1 Ors [2000] NSWSC 333 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2933/97; 2945/97 HEARING DATE(S) : 14/04/00 JUDGMENT DATE : 14 April 2000

In the matter of Australasian Memory Pty Limited ACN 003 636 324 and the Corporations Law Richard Campbell Brien (First Plaintiff) Steven Nicols (Second Plaintiff) PARTIES : Australasian Memory Pty Limited ACN 003 636 324 (First Defendant) Barry Charles Amor - and - Barry Charles Amor (Plaintiff) Australasian Memory Pty Ltd (Defendant) JUDGMENT OF : Santow J

COUNSEL : G L Raffell (Plaintiffs) J P Vohralik (Solicitor) (Defendants) SOLICITORS : Barker Gosling Lawyers (Plaintiffs) Gillis Delaney Brown (Defendants) CATCHWORDS : CORPORATIONS — Cost orders in favour of administrators against the party resisting dispensation being given for holding the second creditors meeting eight days too early when dispensation only sought under s447A and s1322 of Corporations Law after the prematurely called meeting — Could have been sought before under s439A(6) of Corporations Law but that not fatal to cost recovery — Rule that party seeking dispensation usually pays the costs not universal but depends on circumstances — relevant circumstances include that no correlative duty owed to the party opposing the dispensation — Such person neither a creditor nor invoking the public interest but one who sought to resist statutory demand against associated company — This strenuously fought conventional litigation in which costs should follow the event — Orders suspended because of pendency of High Court appeal awaiting judgment. CASES CITED : Golski v Kirk (1987) 14 FCR 143 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 DECISION : Costs orders made.