Ungar v Haddonstone Pty Ltd (In Admin) [1999] NSWSC 250 (11 March 1999)

Last Updated: 29 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Ungar v Haddonstone Pty Ltd (In Admin) [1999] NSWSC 250

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 2893/97

HEARING DATE{S): 11 March 1999

JUDGMENT DATE: 11/03/1999

PARTIES:

Ivan Ungar (P)

Haddonstone Pty Limited (In Administration) (D)

JUDGMENT OF: Hamilton J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

M Green (P)

G Burton (D)

SOLICITORS:

Teece Hodgson & Ward (P)

Deacons Graham & James (D)

CATCHWORDS:

CORPORATIONS [176] - Voluntary administration - Jurisdiction and powers of court - Review of administrator's decision - Costs - Whether costs should be ordered against administrator personally.

ACTS CITED:

DECISION:

Costs not ordered against administrator personally

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

HAMILTON J

THURSDAY, 11 MARCH 1999

2893/97 IVAN UNGAR v HADDONSTONE PTY LTD (In Administration)

JUDGMENT

HIS HONOUR:

1 Short minutes of order have been brought in this morning to complete these proceedings pursuant to the judgment that I delivered on 22 December 1998. There is no controversy about the form of the order I propose to make as to the substance of the proceedings.

2 In respect of costs, Roderick Mackay Sutherland, the administrator, was joined as an additional defendant at the trial for the purpose of an application that he personally pay the costs of the proceedings, and that application was pursued today upon the basis of criticisms made by me of Mr Sutherland's conduct in the reasons for judgment that I delivered on 22 December 1998.

3 I have come to the conclusion that Mr Sutherland's conduct was not such as ought lead me to order him to pay any of the costs personally. It is true that I quite distinctly criticised his conduct and I was and am of the view that that conduct was incorrect in the circumstances. However, it was a situation in which in carrying out his duties he fell into error. However, I am not of the view that the conduct was such as to require, or justify, a making of an order for costs against him personally. It was a case where the process went wrong.

4 The other matter of controversy that has been agitated concerning costs is that the plaintiff was offered the result that it in fact obtained by the judgment in an open letter sent by facsimile transmission on 17 October 1997, which offer remained open until 5pm on Thursday, 23 October 1997. Criticism has also been made on behalf of the defendants of the plaintiff's course of conduct prior to that time in making various claims that it did; those claims did not include at any time the result in fact procured. The plaintiff, on the other hand, criticised the administrator's and company's conduct in proceeding to make this offer to one creditor to vary the regime relating to its claim behind the backs of other creditors. As to the latter criticism, I do not concur in the proposition that there was anything wrong with the administrator's or the company's conduct in this regard. So far as I am concerned, all they did was simply to make a sensible offer of compromise, so sensible as it turns out, that it exactly coincided with the result of the proceedings. Equally, as to the first criticism of the plaintiff, whatever the plaintiff was claiming, the defendants had not made an offer of this magnitude prior to 17 October 1997. It seems to me that the plaintiff ought have its costs up to a week after the making of that offer, although thereafter the company ought have its costs of the proceedings.

5 I propose to make a costs order along those lines, and also to order the plaintiff to pay Mr Sutherland's costs of the unsuccessful costs application that it has made against him. I make the orders contained in the draft short minutes of order initialled by me and placed with the papers.

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LAST UPDATED: 29/03/1999