In the matter of Swan Services Pty Limited (in liquidation) [2017] NSWSC 692

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Swan Services Pty Limited (in liquidation) [2017] NSWSC 692 Hearing dates: 12 May 2017 Decision date: 02 June 2017 Jurisdiction: Equity - Corporations List Before: Black J Decision: The Court holds that the Plaintiff should pay the costs of her claim and the Cross-Claim in respect of the Plaintiff's 2013 charge on an ordinary basis to 18 July 2016 and an indemnity basis from 19 July 2016 to 6 December 2016, including the costs of the Cross-Claimants' proof of the First Cross-Claimant's insolvency in that Cross-Claim (being a proportion of their wider costs of proof of insolvency); and that the Cross-Claimants pay the Cross-Defendant's costs of their Cross-Claim for insolvent trading, excluding costs referable to proof of insolvency, on an ordinary basis. Catchwords: PRODEDURE — Costs — Departing from the general rule – where Plaintiff and Cross-Claimants did not accept Calderbank offers in respect of the Plaintiff's claim and the cross-claim respectively – whether it was unreasonable for the parties not to accept the Calderbank offers

PROCEDURE — Costs — General rule – where First Cross-Claimant required to prove insolvency of a company as at particular dates in defending the Plaintiff's claim and prosecuting a Cross-Claim as to the 2013 charge and Cross-Claimants required to prove insolvency as at other dates in prosecuting a cross-claim for insolvent trading – whether Cross-Defendant should be ordered to pay the Cross-Claimants' costs of proving insolvency where she was successful in defending a cross-claim for insolvent trading but unsuccessful in her own claim and in defending the cross-claim relating to the 2013 charge – whether costs ordered in favour of the Cross-Defendant of the unsuccessful cross-claim for insolvent trading should exclude the costs of proof of the companies' solvency Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 98, 100 - Corporations Act 2001 (Cth), ss 588E(3), 588FF, 588FM, 588G, 588M, 588W, 1317S - Uniform Civil Procedure Rules 2005 (NSW), Pt 42, rr 20.26, 42.1, 42.5, 42.15 Cases Cited: - Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 - Calderbank v Calderbank [1975] 3 WLR 586 - Commonwealth of Australia v Gretton [2008] NSWCA 117 - Corbett Court Pty Ltd v Quasar Constructions (NSW) Pty Ltd [2008] NSWSC 1423 - County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No 2) [2008] NSWCA 273 - Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 - Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 - Hamod v State of New South Wales [2011] NSWCA 375 - Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 - Kraissa v Hair Industrie Penrith Pty Ltd [2015] NSWSC 1905 - Monie v Commonwealth of Australia (No 2) [2008] NSWCA 15 - Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 81 - Re Alsafe Security Products Pty Ltd atf The Alsafe Trust (in liq) [2016] NSWSC 575 - Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 1509 - Re Swan Services Pty Ltd (in liq) [2016] NSWSC 1724 - The Owners – Strata Plan No 61162 v Lipman [2014] NSWSC 622 Category: Costs Parties: Judith Louise Swan (Plaintiff/First Cross-Defendant) Robert John Swan (Second Cross-Defendant) Swan Services Pty Limited (in liquidation) (Defendant/First Cross-Claimant) Anthony Wayne Elkerton (Second Cross-Claimant) Superior Cleaners WA Pty Limited (in liquidation) (Third Cross-Claimant) Cleaners ACT Pty Limited (in liquidation) (Fourth Cross-Claimant) Cleaners Vic Pty Limited (in liquidation) (Fifth Cross-Claimant) Cleaners SA Pty Limited (in liquidation) (Sixth Cross-Claimant) Cleaners Qld Pty Limited (in liquidation) (Seventh Cross-Claimant) Cleaners New South Wales Pty Limited (in liquidation) (Eighth Cross-Claimant) Representation: Counsel: P S Braham SC/M Rose (Plaintiff/First Cross-Defendant) C R C Newlinds SC/J Hynes (Defendants/Cross-Claimants)