In the Matter of Windy Dropdown Pty Limited (Subject to a Deed of Company Arrangement) ACN 080 130 114; Green v Equititrust Limited ACN 061 383 944 (Formerly Equitiloan Limited) [2010] NSWSC 1099

New South Wales Supreme Court

CITATION : In the Matter of Windy Dropdown Pty Limited (Subject to a Deed of Company Arrangement) ACN 080 130 114; Green v Equititrust Limited ACN 061 383 944 (Formerly Equitiloan Limited) [2010] NSWSC 1099

HEARING DATE(S) : 27 August 2010

JUDGMENT DATE : 27 August 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 27 August 2010

DECISION : Refer to paras 56-58 of judgment.

CATCHWORDS : CORPORATIONS – application by administrators of deed of company arrangement for directions in respect of giving effect to costs orders made against company – whether amount for which company liable under costs orders is "Administrators' Disbursements" under deed of company arrangement – where claim not defended by deed administrators but by third party pursuant to leave under Corporations Act 2001 (Cth), s 237 with deed administrators' consent – defending claim part of deed administrators' duties in implementing deed – company's liability to costs order arose from deed administrators' decision as how claim should be defended – deed administrators' lack of control over and involvement in litigation not relevant – costs incurred by company considered costs incurred by deed administrators – no basis for apportioning costs incurred before appointment of administrators - PRACTICE AND PROCEDURE – whether court has power to make lump sum costs order under Civil Procedure Act 2005 (NSW), s 98 after costs order already made – appropriate in circumstances to make lump sum costs order – costs not yet referred for assessment – court's power to make lump sum costs order not spent – whether Civil Procedure Act precludes another judge from making lump sum costs order such that trial judge should make order