Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133

Reported Decision : (2005) 23 ACLC 718

New South Wales Court of Appeal

CITATION: Mead v Watson as Liquidator for Hypec Electronics [2005] NSWCA 133

HEARING DATE(S): On the papers

JUDGMENT DATE: 28 April 2005

JUDGMENT OF: Sheller JA; Ipp JA; Tobias JA

DECISION: (1) Leave to appeal granted; (2) Appeal allowed; (3) Set aside Order 4 made by Justice Campbell on 13 August 2004 in proceedings No. 1268/02 and in lieu thereof order that David Patrick Watson pay the costs of the First Defendant in those proceedings, being costs of and incidental to claims made by the Plaintiff to recover the four properties, on an indemnity basis; (4) Set aside Order 5 made by Justice Campbell on 13 August 2004 in proceedings No. 1933/02 and in lieu thereof order that the costs of the applicant and of David Patrick Watson in proceedings begun by interlocutory process filed 13 December 2001, to the extent that that interlocutory process was heard together with proceedings No. 1268/02, be paid by David Patrick Watson personally on an indemnity basis; (5) The First Opponent to pay personally the claimant's costs of the summons for leave to appeal and the appeal but to have a certificate under the Suitor's Fund Act 1951 if otherwise qualified

CATCHWORDS: PROCEDURE - Costs - Circumstances in which a liquidator may be ordered to pay personally costs which have been ordered against the company in liquidation - - Liquidator caused company to bring proceedings to recover corporate assets - Proceedings unsuccessful due to estoppel and Ex parte James defences - Personal costs order sought against liquidator - Whether liquidator's conduct of litigation was "improper" - Whether liquidator acted reasonably in opposing estoppel and Ex parte James defences - Whether "exceptional circumstances" established justifying personal costs order against liquidator - PROCEDURE - Costs - Indemnity costs - Whether conduct of litigation such as to warrant award of indemnity costs against liquidator