Kirwan v Cresvale Far East Ltd (In Liq) (No 2) [2003] NSWCA 29

New South Wales Court of Appeal

CITATION : Kirwan v Cresvale Far East Ltd (In Liq) (No 2) [2003] NSWCA 29 HEARING DATE(S) : On written submissions JUDGMENT DATE : 28 February 2003

JUDGMENT OF : Meagher JA; Giles JA; Young CJ in Eq DECISION : On the appeal: (1) Appeal allowed in part. (2) Set aside declaration 7 made on 8 March 2001. (3) Vary declarations 5 and 6 made on 8 March 2001: (a) by adding at the commencement of declaration 5 "Upon condition that the first defendant repay to the fourth defendant the sum of $100,000 subscribed for the shares", and (b) by adding at the commencement of declaration 6 "Upon the same condition,". (4) Vary order 1 made on 10 September 2001 by adding at its conclusion, "save so far as those costs relate to the issue of whether the allotment of shares to Mr Kirwan should be set aside, on which issue the plaintiff and the third defendant are to pay the fourth defendant's costs". (5) Declare that the first defendant is also liable to pay the fourth defendant interest on the said sum of $100,000 in the amount of $23,500. (6) Order that the said sum of $23,500 be paid by the first defendant to the fourth defendant. (7) Order that the first, second and fourth respondents pay the appellant's costs of the appeal. On the cross-appeal: (1) Cross-appeal allowed in part. (2) Set aside Orders 3 and 4 made on 10 September 2001. (3) Vary the orders as to costs made on 10 September 2001 by ordering that the plaintiff and third defendant pay the costs of the second defendant of the issue of whether the second defendant should be ordered to pay the costs ordered to be paid by him personally (including the costs of the first defendant) and without a right to indemnity from the assets or funds of the first defendant.