In the matter of RMGA Pty Limited (No 2) [2012] NSWSC 880

Supreme Court New South Wales

Medium Neutral Citation: In the matter of RMGA Pty Limited (No 2) [2012] NSWSC 880 Hearing dates: 30 May 2012 Decision date: 02 August 2012 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Detailed orders made to give effect to judgment in primary proceedings. Catchwords: PRACTICE AND PROCEDURE - Orders - Orders to give effect to judgment in primary proceedings Legislation Cited: - Civil Procedure Act 2005 (NSW) s 98(1) - Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.2 Cases Cited: - Re RMGA Pty Ltd [2012] NSWSC 678 Category: Consequential orders Parties: Kennards Hire Pty Limited (Plaintiff) RMGA Pty Limited (in liquidation) (Defendant) David Lewis Clout (Applicant) Mignon Esther Gardner (Respondent) Representation: Counsel: J.T. Johnson (Applicant) H.W. Somerville (Respondent) Solicitors: Owen Hodge (Applicant) Clamenz Evans Ellis (Respondent) File Number(s): 09/289068

Judgment 1On 21 June 2012, I delivered my judgment ([2012] NSWSC 678) in respect of an Interlocutory Process dated 30 January 2012 brought by Mr David Lewis Clout in his capacity as Official Liquidator of RMGA Pty Limited (in liq) ("RMGA") which sought, relevantly, a declaration that he was entitled to recover from RMGA the amount of his approved remuneration for the period of 9 February 2010 to 4 November 2011, an order that the fixing of the remuneration be referred to a Registrar and directions as to the manner in which that review was to be conducted. 2I held that Mr Clout was entitled to recover his remuneration for the relevant period and indicated that I would refer the question of that remuneration to a Registrar for the purpose of determining that remuneration. I indicated that I would hear the parties as to the form of any suggested directions as to the manner in which the review was to be conducted and would also hear the parties as to costs and directed the parties to bring in Short Minutes of Order to give effect to my judgment. The Respondent, Ms Gardner, has submitted orders dealing with the process for review of Mr Clout's remuneration for the relevant period and with costs ("Proposed Orders"). 3Orders 1-6 of the Proposed Orders may be made by consent although I will amend those orders to provide for the review to be undertaken by an Associate Justice. The primary dispute before me was in relation to order 7 of the Proposed Orders. Ms Gardner contends that that order should provide that the costs of the Interlocutory Process to date be reviewed and determined upon the outcome of the review of Mr Clout's costs. Mr Clout proposes that that order should provide for Ms Gardner to pay the costs of the Interlocutory Process, having regard to the judgment I have delivered in respect of the Interlocutory Process and the fact that the review of Mr Clout's remuneration under s 473 of the Act will not involve any assessment of the costs of the Interlocutory Process. 4Section 98(1) of the Civil Procedure Act 2005 (NSW) relevantly provides that: "Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis." Uniform Civil Procedure Rules 2005 (NSW) r 42.1 ("UCPR") provides that, if an order is made as to costs, the Court is to order that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs. UCPR r 42.2 states the general rule that costs payable to a person under an order of the Court or these rules are to be assessed on the ordinary basis. Mr Clout was substantially successful in the application before me and I am satisfied that Ms Gardner should be ordered to pay the costs of and incidental to that application. 5There is no occasion to make order 8, dealing with the recovery of Mr Clout's remuneration from the Company's property, subject to order 7 in the manner which Ms Gardner proposes, since order 7 will not take the form that Ms Gardner proposes. I will amend order 9 to stand over the matter to a fixed date with liberty to restore the matter on 3 days notice. 6Accordingly, I make the following orders: 1. Order that the remuneration of the Applicant, David Lewis Clout, as official liquidator of RMGA Pty Ltd for the period 9 February 2010 to 4 November 2011 be reviewed pursuant to s. 473(3)(b)(ii) of the Corporations Act 2001. 2. Order that there be and is hereby referred to an Associate Justice the matter of conducting and determining the review so ordered. 3. Direct that the review be listed before the Associate Justice on a day to be appointed by the Associate Justice (notice of at least 7 days to the Applicant, David Lewis Clout, and the Respondent, Mignon Esther Gardner) for the purpose of giving directions for the conduct of the review. 4. Order that further compliance with the requirements of rule 9.4 of the Supreme Court (Corporations) Rules 1999 relating to giving of notices to any creditor or contributory and objections by any creditor or contributory be dispensed with. 5. Direct that evidence admitted upon the hearing of the Interlocutory Process dated 30 January 2012 be the evidence upon the review to be conducted and determined by the Associate Justice, subject to any determination as to relevance of any part of it to the review. 6. Order that the costs of the review by the Associate Justice be determined by the Associate Justice. 7. Order that the Respondent, Mignon Esther Gardner, pay the costs of the Interlocutory Process dated 30 January 2012 to date as agreed or as assessed. 8. Declare that the Applicant, David Lewis Clout, is entitled to recover his remuneration as fixed by the Associate Justice and fair and reasonable costs charges and expenses as agreed to by the Respondent, Mignon Esther Gardner, or assessed on a solicitor and own client basis under the Legal Profession Act 2005, out of the property of RMGA Pty Ltd. 9. Order that the balance of the Interlocutory Process filed 30 January 2012 stand over before the Corporations Judge on 3 December 2012 with liberty to restore the matter on 3 days notice.