Supreme Court New South Wales Medium Neutral Citation: In the matter of Superannuation Auditors Pty Limited (ABN 53 150 804 103) [2014] NSWSC 73 Hearing dates: 29 January 2014 Decision date: 29 January 2014 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Proceedings dismissed. Plaintiff pay defendant's costs assessed in the sum of $5,500 Catchwords: COSTS - where order sought that costs be payable on an indemnity basis - where all costs in the nature of disbursements - unnecessary to resolve question. COSTS - where order sought that plaintiff's director be personally liable for costs - no sufficient basis for such order. Legislation Cited: Corporations Act 2001 (Cth) s 459G Category: Principal judgment Parties: Superannuation Auditors Pty Limited ACN 150 804 103 (plaintiff) Zero Cost Pty Limited ACN 159 117 281 (defendant) Representation: Counsel: M Hickey (plaintiff) A Hochroth (defendant) Solicitors: Hickey Law (plaintiff) File Number(s): 13/292799 Judgment (ex tempore) 1HIS HONOUR: By originating process filed on 27 September 2013, the plaintiff Superannuation Auditors Pty Limited sought an order that a creditor's statutory demand dated 27 August 2013 that was served on it by the defendant Zero Costs Pty Limited be set aside pursuant to (Cth) Corporations Act 2001, s 459G. On the first or second return date of that application, the defendant indicated that it sought to have the application summarily dismissed, and a number of subsequent directions hearings - on 23 October, 11 November and 18 November - pertained to the preparation of the interlocutory application, which I heard and dismissed with costs on 25 November 2013. The matter was then set down for final hearing of the originating process today. However, the plaintiff yesterday indicated that it would submit to an order dismissing its application with costs. The only matters that now require consideration are, first, whether those costs should be payable on an indemnity or ordinary basis; secondly, the quantification of those costs; and thirdly, whether the plaintiff's director, Mr Fishburn, should be ordered to bear those costs personally. 2As to the first, given that I propose to make a lump sum order and that, because the defendant did not have a solicitor, the costs are all in the nature of disbursements, there is going to be no practical difference between an order on the indemnity basis and an order on the ordinary basis it is unnecessary to resolve the issues or to address the matters said to warrant an indemnity order. 3As to the second, as I have said, the defendant did not retain a solicitor, although he did brief counsel on a direct access basis to appear at the various directions hearings, the interlocutory hearing and on the hearing. In my view, as I have made a costs order against the defendant in respect of the summary dismissal application, the costs to which the defendant is entitled do not include those associated with only the summary dismissal application. They do include the costs of obtaining a transcript of the hearing of the summary dismissal application, which was appropriately obtained in preparation for the final hearing; the costs of Mr Harkins procuring travel to Sydney to attend for cross-examination as required; and disbursements in the nature of photocopying and counsel's fees. I assess the defendant's recoverable costs in the sum of $5,500. 4As to whether Mr Fishburn ought to be ordered to pay the costs personally, it seems to me that there is nothing out of the ordinary in this application in a winding-up proceeding so far as the liability of the director of the company in question is concerned. There is no sufficient basis for taking the extraordinary step of making an order against a non-party to the proceedings. 5Accordingly, the Court by consent orders that the proceedings be dismissed. The Court further orders that the plaintiff pay the defendant's costs assessed in the sum of $5,500. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2014