In the matter of Metal Storm Ltd (subject to Deed of Company Arrangement) [2014] NSWSC 1170

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Metal Storm Ltd (subject to Deed of Company Arrangement) [2014] NSWSC 1170 Hearing dates: 27 - 29 May 2014, 23 July 2014 Decision date: 25 August 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Declarations made that the relevant defendant was and is not required to comply with relevant directions. Declaration made that relevant defendant is entitled to vote at meetings of creditors of company in respect of debts arising from issuing of secured notes. Order made for dismissal of cross-claim. Orders made as to costs between relevant parties, and that costs of all issues relating to liens and indemnities be reserved. Catchwords: PROCEDURE - judgments and orders - disputed issues remaining before orders can be made to give effect to primary judgment in proceedings - declarations -relevant defendant's obligation to comply with relevant directions - entitlement to vote at creditors' meeting - failure to appoint controller during decision period - dismissal of relevant defendant's cross-claim - whether construction of limitation on liability clause is an issue relating to quantum of damages.

PROCEDURE - application for leave to re-open - issues relating to application of limitation on liability clause and causation - whether leave should be granted.

PROCEDURE - costs - general rule that costs follow the event - where there has been a mixed outcome in proceedings - costs of issues - whether reason shown to depart from general rule. Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 60, 98 - Corporations Act 2001 (Cth) ss 283HA, 283HB, 283HB(1)(d), 283HB(1)(g), 445B, 445D, 447A, 447D, 447E(1), 532(2) - Corporations Regulations 2001 (Cth) rr 5.3A.07, 5.3A.07(1)(a) - Trustee Act 1925 (NSW) s 85 - Uniform Civil Procedure Rules 2005 (NSW) Pt 28, r 42.1 Cases Cited: - Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 - Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 - Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 - Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 - Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No 2) [2007] FCA 1040 - Milne v Attorney-General (Tasmania) [1956] HCA 48; (1956) 95 CLR 460 - Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 - Oschlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 - Re Jick Holdings Pty Ltd (in liq) [2009] NSWSC 574; (2002) 72 ACSR 387 - Re Telemedcare Holdings Pty Ltd (subject to Deed of Company Arrangement) [2011] NSWSC 853 - Ruddock v Vardalis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 - The Owners - Strata Plan 61162 v Lipman [2014] NSWSC 622 - Wentworth v Rogers [2002] NSWSC 921 - Wentworth v Wentworth [1999] NSWSC 638 Category: Costs Parties: Adam Shepard (in his capacity as deed administrator of Metal Storm Ltd) (First Plaintiff) Metal Storm Ltd (subject to a deed of company arrangement) (Second Plaintiff) ANZ Trustees Ltd (formerly ANZ Executors & Trustee Company Ltd) (First Defendant) The Australian Special Opportunity Fund, LP (Second Defendant) Representation: Counsel: V R Gray (Plaintiffs) C Scerri QC/H Austin/D Krochmalik (First Defendant) M R Hall (Second Defendant) C Brown (solicitor) (Proposed receivers) Solicitors: Somerset Ryckmans (Plaintiffs) Ashurst Australia (First Defendant) Squire Sanders (Second Defendant) O'Neill Partners (Proposed Receivers) File Number(s): 2013/377450