Bradley Mark Lum v MV Developments (Lane Cove) Pty Ltd (in liquidation) (No 2) [2018] NSWSC 1129

Supreme Court New South Wales

Medium Neutral Citation: Bradley Mark Lum v MV Developments (Lane Cove) Pty Ltd (in liquidation) (No 2) [2018] NSWSC 1129 Hearing dates: 30 May 2018; 27 June 2018 Decision date: 24 July 2018 Jurisdiction: Equity Before: Emmett AJA Decision: 1. The first defendant and first-cross defendant to the third cross-claim, M V Developments (Land Cove) Pty Ltd (in liquidation) ACN 152 347 012 (the Company), is to pay the costs of the proceedings incurred by the cross-claimant on the third cross-claim and the seventh cross-defendant on the first cross claim (Mr Antonios) on the ordinary basis up to 24 October 2017, and on an indemnity basis thereafter.

2. Andrew James Barnden and Robert Boyce Moodie, respondents to the Notice of Motion, being the current and former liquidators of the Company respectively, are to pay Mr Antonios' costs of the proceedings on the ordinary basis up to 24 October 2017, and on an indemnity basis thereafter. Catchwords: COSTS – proceedings for specific performance of contract of sale against company in liquidation - where costs orders sought against company and liquidators personally – where liquidators entered into a settlement deed with creditors – where terms of the deed allowed one creditor to stand in the shoes of the company and defend the claim for specific performance – where liquidators had filled a submitting appearance in relation to the creditors claim – where liquidators did not file a submitting appearance in relation to the claim for specific performance – where liquidators did not seek judicial advice - whether conduct of the liquidators un reasonable

COSTS— Exceptions to general rule that costs follow the event — Offers of compromise / Calderbank offers - whether failure to accept offer of compromise unreasonable Legislation Cited: Corporations Act 2000 (Cth) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: AMC Commercial Cleaning (NSW) Pty Ltd v Code [2013] NSWSC 332 Bradley Mark Lum v MV Developments (Lane Cove) Pty Ltd (in liquidation) [2018] NSWSC 247 Calderbank v Calderbank [1975] 3 All ER 333 Lum v MV Developments (Lane Cove) Pty Ltd (in Liquidation) [2016] NSWSC 1248 Vollmer v Hauber-Davidson [2005] NSWCA 237 Elite Protective Personal v Salmon [2007] NSWCA 322 Silvia v Brodyn Pty Ltd [2007] NSWCA 55 Category: Costs Parties: Bradley Mark Lum (First Plaintiff) Justin James Lum (Second Plaintiff) M V Developments (Lane Cove) Pty Ltd (In Liq) (First Defendant, First Cross Defendant on First Cross Claim, First Cross Defendant on Second Cross Claim, First Cross Defendant on Third Cross Claim, First Cross Defendant on Fourth Cross Claim, First Cross Defendant on Fifth Cross Claim) Gold Stone Capital Pty Limited (Second Defendant. Second Cross Defendant on First Cross Claim, First Cross Claimant on Second Cross Claim, Second Cross Defendant on Third Cross Claim, Second Cross Defendant on Fourth Cross Claim and Second Cross Defendant on Fifth Cross Claim) Ta Lee Investments Pty Ltd (Third Defendant, First Cross Claimant on First Cross Claim, Second Cross Defendant on Second Cross Claim, Third Cross Defendant on Third Cross Claim, Third Cross Defendant on Fourth Cross Claim, Third Cross Defendant on Fifth Cross Claim) Robert Moodie (Third Cross Defendant on First Cross Claim, Third Cross Defendant on Second Cross Claim) Andrew Barnden (Fourth Cross Defendant on First Cross Claim) Po Wah Ng (Fifth Cross Defendant on First Cross Claim, Fifth Cross Defendant on Fourth Cross Claim and First Cross Claimant on Fifth Cross Claim) Erica Ying Yuan (Sixth Cross Defendant on First Cross Claim, Fourth Cross Defendant on Second Cross Claim, Fourth Cross Defendant on Third Cross Claim, First Cross Claimant on Fourth Cross Claim, Fourth Cross Defendant on Fifth Cross Claim) Alexander James Antonios (Seventh Cross Defendant on First Cross Claim, Fifth Cross Defendant on Second Cross Claim, First Cross Claimant on Third Cross Claim, Fourth Cross Defendant on Fourth Cross Claim)