In the matter of Punters Show Pty Limited [2017] NSWSC 605

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Punters Show Pty Limited [2017] NSWSC 605 Hearing dates: 20 March, 27–28 April 2017, last written submissions 10 May 2017 Decision date: 17 May 2017 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order that the order made on 13 March 2017 dismissing the proceedings be vacated and that the Plaintiffs' Statement of Claim be struck out. Order that the Plaintiffs pay the Defendants' costs thrown away by the defence of the Statement of Claim and any amendment of the Originating Process and Statement of Claim, as agreed or as assessed. Order that the Plaintiffs pay the Defendants' costs of and incidental to the Interlocutory Processes returnable on 13 March 2017 up to and including that date, including the costs of and incidental to the hearing on 13 March 2017, on an indemnity basis, as agreed or as assessed. There be no order as to the costs of the hearing on 20 March 2017, that part of the hearing on 27 April 2017 relating to this application or the hearing on 28 April 2017. Catchwords: PROCEDURE – Application to vacate orders that proceedings be dismissed which were stayed when made – where Plaintiffs did not attend directions hearing and hearing of interlocutory application – where pleading embarrassing – where Plaintiffs seek to replead their case – where detriment to Defendants sufficiently addressed by an order for costs – whether order that proceedings be dismissed should be vacated – whether Statement of Claim should be struck out

PRODEDURE – Costs – Departing from the general rule – whether Plaintiffs should pay costs thrown away by striking out of Statement of Claim and costs of hearings they did not attend on an indemnity basis – whether order should be made as to costs of Defendants' application that proceedings be dismissed – whether costs should be payable forthwith – whether costs should be payable on a gross sum basis Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 56–58, 61, 98 - Corporations Act 2001 (Cth), ss 180–183, 233, 237, 249F - Legal Profession Uniform Law (NSW) - Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 14.28, 15.3, 42.1, 42.2, 42.7(2), 52.5 Cases Cited: - Airservices Australia v Jeppeson Sanderson Inc [2006] FCA 906 - Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (No 14) (unreported, 18 August 1995) - Banque Commerciale SA (en liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 - Bi v Mourad [2010] NSWCA 17 - Brasington v Overton Investments Pty Ltd [2001] FCA 571 - Colgate-Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 - Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2008] VSC 77 - Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1 - Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334; (2015) 90 NSWLR 595 - Gunns Ltd v Marr [2005] VSC 251 - Hamod v State of New South Wales [2002] FCAFC 97; (2002) 188 ALR 659 - Hamod v State of New South Wales [2011] NSWCA 375 - Hoser v Hartcher [1999] NSWSC 527 - Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23 - Iacullo v Iacullo [2013] NSWSC 1517 - Kirby v Sanderson Motors Pty Ltd [2002] NSWCA 44; (2001) 54 NSWLR 135 - Lahoud v Lahoud [2006] NSWSC 126 - Liverpool City Council v Estephan [2009] NSWCA 161 - McGuirk v University of New South Wales [2009] NSWSC 1424 - Ng v Chong [2010] NSWSC 127 - Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 2) [2010] FCA 1347 - Rafferty v Time 2000 West Pty Ltd (No 3) [2009] FCA 727; (2009) 257 ALR 503 - Re Vangory Holdings Pty Ltd [2015] NSWSC 801 - Ritson v Gay & Lesbian Community Publishing Ltd [2012] NSWSC 586 - Starr-Diamond v Diamond (No 4) [2013] NSWSC 811 - Singh v Singh [2017] NSWCA 15 - Taylor v Lederman [2013] VSC 99 - UGL Services Pty Ltd v F1 Solutions Pty Ltd [2012] FCA 245 - Webster v Super Smart Strategies Pty Ltd [2017] NSWSC 531 - Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433; (2011) 83 ACSR 206 - Young v Hones [2013] NSWSC 580 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Procedural and other rulings Parties: Marc Alan Lambourne (First Plaintiff) Glenn Craig Pollett (Second Plaintiff) Dallas Matthew Baker (First Defendant) Todd Cameron Buckingham (Second Defendant) Topbetta Holdings Limited (Third Defendant) 12 Follow Pty Limited (Fourth Defendant) Operis Momentus Pty Limited (Fifth Defendant) Representation: Counsel: C R de Robillard (Plaintiffs) P Silver (First Defendant) N M Bender (Second to Fifth Defendants)