Radiant Alliance Australia Pty Ltd v Divola [2017] NSWSC 1021

Supreme Court New South Wales

Medium Neutral Citation: Radiant Alliance Australia Pty Ltd v Divola [2017] NSWSC 1021 Hearing dates: 2 August 2017 Decision date: 02 August 2017 Jurisdiction: Common Law Before: Adamson J Decision: (1) Dismiss the amended summons filed on 24 March 2017. (2) Order the plaintiff to pay the defendant's costs of the proceedings. (3) In respect of the costs payable pursuant to order (2) above, order the plaintiff, pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), to pay to the defendant the amount of $15,000 (including GST) within 28 days of the date of this order. Catchwords: CORPORATIONS LAW – voluntary liquidation – where meeting called by liquidator pursuant to s 497 of Corporations Act 2001 (Cth) – where defendant not provided with notice of meeting – where liquidator did not intend to appear on behalf of plaintiff – HELD – amended summons dismissed – dismissal of amended summons not a proceeding against company within meaning of s 500 of Corporations Act 2001 (Cth)

COSTS – gross sum costs order made rather than assessed costs pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW),s 98 Corporations Act 2001 (Cth), ss 497, 500 Local Court Act 2007 (NSW), s 39 Cases Cited: Bechara (t/as Bechara & Co) v Bates [2016] NSWCA 294 Dealquip Australia Pty Ltd v 33 Electra Pty Ltd (No 2) [2013] NSWSC 1382 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Webster v Super Smart Strategy Pty Ltd [2017] NSWSC 531 Category: Principal judgment Parties: Radiant Alliance Australia Pty Ltd (Plaintiff) Anthony Genio Divola (Defendant) Representation: Counsel: No appearance for Plaintiff P Fowler (Defendant)