House of Golf Chatswood P/L v McManus & Ors - Costs;McManus & 2 Ors v House of Golf Chatswood & 5 Ors - Costs;Vardon Golf Co P/L (in liq) v McManus & 1 Or - Costs [2005] NSWSC 1246

New South Wales Supreme Court

CITATION : House of Golf Chatswood P/L v McManus & Ors - Costs;McManus & 2 Ors v House of Golf Chatswood & 5 Ors - Costs;Vardon Golf Co P/L (in liq) v McManus & 1 Or - Costs [2005] NSWSC 1246

HEARING DATE(S) : 26/10/04, subsequent written submissions

JUDGMENT DATE : 6 December 2005

Equity Division JURISDICTION : Corporations List

JUDGMENT OF : White J

DECISION : See para 34 of judgment.

CATCHWORDS : CORPORATIONS - Winding-up - Proceedings brought and defended by company in liquidation - Application by successful litigants that costs order be made against liquidator personally - No allegation that liquidators acted improperly - Application motivated by apprehension that applicants will rank with unsecured creditors in respect of the costs order - Discussion of court's jurisdiction to make a personal costs order against liquidator absent any misconduct and where liquidator was not a party to the proceedings - Held that no jurisdiction to make orders against liquidators personally - Costs awarded against company in liquidation where proceedings are properly brought or defended by liquidators are expenses of the winding-up and rank ahead of other claims - Application dismissed.

Corporations Act 2001 (Cth) Civil Procedure Act 2005 (NSW) LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Supreme Court Rules 1970 (NSW)

Bent v Gough (1992) 36 FCR 204 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Hypec Electronics Pty Ltd (in liq) v Mead (2004) 61 NSWLR 169 Mead v Watson (2005) 23 ACLC 718 Kemp v Coastal Constructions Pty Ltd (Court of Appeal, Supreme Court of Queensland, 17/3/93, unreported but noted in (1993) 67 ALJ 706) Belar Pty Limited (in liq) v Mahaffey [2000] 1 Qd R 477 Kimtran Pty Ltd v Downie [2004] 1 Qd R 651 Re Newark Pty Ltd (in liq) [1993] 1 Qd R 409 Re Wilson Lovatt & Sons Ltd [1977] 1 All ER 274 CASES CITED : Hession v Century 21 South Pacific Ltd (in liq) (1992) 28 NSWLR 120 Re Pacific Coast Syndicate Ltd [1913] 2 Ch 26 Process Engineering Pty Ltd v Darby Meat Processing Co Limited [1977] WAR 145 Frontmond Pty Ltd v Rodgers (1993) 6 BPR 13112 Re TMV (Excavations) Pty Ltd (1980) 4 ACLR 857 Fused Electrics Pty Ltd v Donald (1995) 13 ACLC 432 Jeffcott Holdings Pty Ltd v Young (1995) 16 ACSR 33 Lofthouse, Re Riverside Nursing Care Pty Ltd (subject to deed of company arrangement) (2004) 22 ACLC 215 Edwards v McVeigh (2004) 51 ACSR 142