In the matter of Hillsea Pty Limited [2019] NSWSC 1309

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Hillsea Pty Limited [2019] NSWSC 1309 Hearing dates: Written submissions 11-12 September 2019 Decision date: 27 September 2019 Jurisdiction: Equity - Corporations List Before: Black J Decision: Prayers 4-8 of the Amended Originating Process filed 13 November 2017 and Points of Claim filed 24 October 2017 be dismissed. The Notice of Motion filed on 14 May 2019 be dismissed. Order that the Second Defendant be wound up. The winding up order to be stayed until 4pm on 21 October 2019.

Orders as to costs made. Catchwords: COSTS – party/party – determination as to costs of hearing – where prayers of originating process divided over two separate hearings – where plaintiffs had success at first hearing – whether plaintiffs should be awarded their costs of first hearing.

COSTS – party/party – determination as to costs of hearing – where prayers of originating process divided over two separate hearings – where plaintiffs were unsuccessful at second hearing – whether plaintiffs should pay costs of first defendant at second hearing.

COSTS – party/party – general rule that costs follow the event – where interlocutory process and notice of motion need not be determined – whether filing party should be ordered to pay costs.

COSTS – application for costs on an indemnity basis – where offer of compromise/Calderbank offer made – where offer addressed to multiple parties – where offer sent during holiday period and open for acceptance until soon after end of holiday period – whether it was unreasonable for offers to not be accepted. Legislation Cited: - Civil Procedure Act 2005 (NSW) s 98(1)(c) - Corporations Act 2001 (Cth) ss 461(1)(k), 466, 532(2), 1318, 1322, 1322(4), 1322(4)(a), 1322(4)(c) - Income Tax Assessment Act 1936 (Cth) Pt III, Div 7A - Uniform Civil Procedure Rules 2005 (NSW) Pt 20, Div 4; rr 20.26, 20.26(2), 42.1, 42.2, 42.5, 42.14, 42.15A Cases Cited: - Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 - Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 - Calderbank v Calderbank [1975] 3 All ER 333 - Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd (No 2) [2018] NSWCA 266 - Commonwealth of Australia v Gretton [2008] NSWCA 117 - Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 - Hamod v State of New South Wales [2002] FCAFC 97; (2002) 188 ALR 659 - Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 - Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 7) [2008] NSWSC 199; (2008) 65 ACSR 324 - Leichhardt Municipal Council v Green [2004] NSWCA 341 - Mobis Parts Australia Pty Ltd v XL Insurance Company SE (No 2) [2019] NSWCA 19 - Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 816 - Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 - Re Alsafe Security Products Pty Ltd atf the Alsafe Trust (in liq) [2016] NSWSC 575 - Re Hillsea Pty Limited [2019] NSWSC 1152 - Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 - Walker v Harwood [2017] NSWCA 228 - Westpac Banking Corporation v Ollis [2007] NSWSC 1008 Category: Costs Parties: Elizabeth Mary McIvor (First Plaintiff/First Cross-Defendant to First Cross-Claim/Second Cross-Defendant to Second Cross-Claim) Maureen Ann Joseph (Second Plaintiff/Second Cross-Defendant to First Cross-Claim/Third Cross-Defendant to Second Cross-Claim) Peter Anthony Joseph (First Defendant/Cross-Claimant to First Cross-Claim/First Cross-Defendant to Second Cross-Claim) Hillsea Pty Limited (Second Defendant/Third Cross-Defendant to First Cross-Claim/Cross-Claimant to Second Cross-Claim) Representation: Counsel: A J Grant (Plaintiffs) D A Smallbone/D Edney (First Defendant) M R Tyson (Second Defendant)