New Hope Corporation Ltd v Northern Energy Corporation Ltd (administrators appointed) (No 2) [2019] NSWSC 952

Supreme Court New South Wales

Medium Neutral Citation: New Hope Corporation Ltd v Northern Energy Corporation Ltd (administrators appointed) (No 2) [2019] NSWSC 952 Hearing dates: On the papers; submissions received 19, 22, 24 and 25 July 2019 Decision date: 26 July 2019 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Declarations to the effect that the plaintiffs did not guarantee the debts of the first to eighteenth defendants; nineteenth defendant to pay plaintiffs' costs of the construction argument; plaintiffs to pay nineteenth defendant's costs of the rectification argument; nineteenth defendant to pay the costs of the representative defendant of meeting the plaintiffs' construction argument Catchwords: CONTRACTS – remedies – declaration – as to proper construction of a Deed of Cross Guarantee – desirability of setting out the gist of the findings

COSTS – whether proceedings for declarations as to construction of Deed and alternatively rectification of Deed were defensive – where plaintiffs succeeded on construction but would have failed on rectification – whether costs should be ordered to reflect parties' success on those issues – what orders should be made in respect of representative defendant Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266 Network Ten Pty Ltd v TX Australia Pty Ltd (No 2) [2019] NSWCA 51 New Hope Corporation Ltd v Northern Energy Corporation Ltd (administrators appointed) [2019] NSWSC 879 Jahani, in the matter of Northern Energy Corporation Ltd (Administrators Appointed) [2018] FCA 1983 Rural Press Limited v Australian Competition and Consumer Commission (2003) 216 CLR 53; [2003] HCA 75 Category: Costs Parties: New Hope Corporation Limited (First Plaintiff) Acland Pastoral Co. Pty Ltd (Second Plaintiff) Andrew Wright Holdings Pty Ltd (Third Plaintiff) Arkdale Pty Ltd (Fourth Plaintiff) Jeebropilly Collieries Pty Ltd (Fifth Plaintiff) New Acland Coal Pty Ltd (Sixth Plaintiff) New Lenton Coal Pty Ltd (Seventh Plaintiff) New Oakleigh Coal Pty Ltd (Eighth Plaintiff) Queensland Bulk Handling Pty Ltd (Ninth Plaintiff) Northern Energy Corporation Limited (administrators appointed) (First Defendant) Colton Coal Pty Ltd (administrators appointed) (Second Defendant) eCOALogical Fuels Pty Ltd (Third Defendant) Elimatta Pastoral Pty Ltd (Fourth Defendant) Hueridge Pty Ltd (Fifth Defendant) Krestlake Pty Ltd (Sixth Defendant) Lenton Management and Marketing Pty Ltd (Seventh Defendant) Mattvale Pty Ltd (Eighth Defendant) New Hope Coal Marketing Pty Ltd (Ninth Defendant) New Hope Collieries Pty Ltd (Tenth Defendant) New Hope Energy Pty Ltd (Eleventh Defendant) New Hope Exploration Pty Ltd (Twelfth Defendant) New Hope Water Pty Ltd (Thirteenth Defendant) Taroom Coal Pty Ltd (Fourteenth Defendant) Tetard Holdings Pty Ltd (Fifteenth Defendant) Tivoli Collieries Pty Ltd (Sixteenth Defendant) Uniford Pty Ltd (Seventeenth Defendant) Yamala Coal Pty Ltd (Eighteenth Defendant) Wiggins Island Coal Export Terminal Pty Ltd (Nineteenth Defendant) Representation: Counsel: F T Roughley, G W Keesing (Plaintiffs) A G Bell SC with M L Rose (First and Second Defendants) R C A Higgins SC with J Hutton (Nineteenth Defendant)