Londish v Sheahan & Ors – In re Valofo Pty Ltd (No 2) [2010] NSWSC 446

New South Wales Supreme Court

CITATION : Londish v Sheahan & Ors – In re Valofo Pty Ltd (No 2) [2010] NSWSC 446

HEARING DATE(S) : 11 May 2010

JUDGMENT DATE : 11 May 2010

JURISDICTION : Equity Division Corporations List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 11 May 2010

DECISION : Plaintiff to pay Defendants' costs.

CATCHWORDS : CORPORATIONS – COSTS – Whether submitting party should have costs of representation throughout hearing.

CATEGORY : Consequential orders

Peter Londish (Plaintiff) PARTIES : John Sheahan and Ian Lock (First Defendants) David Bowman (Second Defendant) Sidney Londish (Third Defendant)

FILE NUMBER(S) : SC 2009/291621

S.J. Burchett (Plaintiff) COUNSEL : M. Stevens (Sol) (First Defendant – Submitting Appearance) P. Evans (Sol) (Second and Third Defendants)

Hartmann & Associates (Plaintiff) SOLICITORS : O'Neill Partners (First Defendants – Submitting Appearance) Philip Evans & Associates (Second and Third Defendants)

2009/291621 In re Valofo Pty Ltd: Londish v Sheahan & Ors (No 2)

JUDGMENT – Ex tempore

11 May, 2010

1 I gave judgment in this matter on 28 April, 2010. The result of the proceedings was that the Defendants succeeded. 2 Costs would normally follow the event and Mr Burchett of Counsel, for the Plaintiff, says nothing about why that course should not be followed, except upon one aspect. The point of dispute is whether the First Defendants, the liquidators of Valofo, despite filing a submitting appearance on 22 December 2009, should have their costs of solicitor and counsel actually attending the hearing of the proceedings. 3 Mr Burchett says that if a party files a submitting appearance, then there is no reason for that party to be represented during the trial and the losing party should not have to bear the submitting party's costs of appearing and doing nothing throughout the hearing. 4 This is a rather unusual matter. As I have explained in my reasons for judgment, the proceedings are part of a protracted dispute between Mr Sidney Londish and Mr Bowman on the one hand, and Mr Peter Londish on the other. It is plain that there is some animosity between the parties. 5 The liquidators' solicitors wrote to the Plaintiff's solicitors on 22 February 2010, only a few days before the trial was to commence. They noted that their clients had filed a submitting appearance and said that, now having reviewed the Plaintiff's outline of submissions, they were instructed to seek confirmation that there was to be no personal attack on the credibility of the liquidators in respect of their conduct of the administration to date. What the solicitors meant was that, although the Plaintiff's Statement of Claim made certain criticisms of the liquidators' conduct, those criticisms did not appear to be carried through in the Plaintiff's outline of submissions which, in accordance with the Court's directions, was provided to the Defendants some days before the trial commenced. 6 The liquidators' solicitors noted that the allegations of inappropriate conduct or misconduct on the part of the liquidators did not appear to be substantiated in the affidavits filed on behalf of the Plaintiff. They continued: "We request that you confirm in writing that there will be no personal attack on our clients' credibility in respect of their conduct of the administration to date. If we do not receive your response by 9am, Tuesday, 23 February 2010 m we are instructed to engage Counsel to appear at the hearing.