Darktone P/L (in liq) v Bate & Anor [2003] QSC 288

SUPREME COURT OF QUEENSLAND CITATION: Darktone P/L (in liq) v Bate & Anor [2003] QSC 288 PARTIES: DARKTONE PTY LTD (IN LIQUIDATION) ACN 007 398 905 (plaintiff/applicant) v ROBERT NORMAN BATE (first defendant/respondent) MARGARET MARY BATE (second defendant/respondent) FILE NO: S 3790 of 2003 DIVISION: Trial Division PROCEEDING: Application - costs DELIVERED ON: 3 September 2003 DELIVERED AT: Brisbane HEARING DATE: 12 May, 3 June, 25 June 2003 JUDGE: B W Ambrose J ORDER: I order that the plaintiff pay the defendants their costs of and incidental to the plaintiff’s action to be assessed on a standard basis. CATCHWORDS: COSTS – where plaintiff’s action dismissed – where no submissions received from defendants – whether costs should be awarded on indemnity basis – whether the liquidator should be personally responsible for them. COUNSEL: G D O’Sullivan for the plaintiff/applicant L Aitken for the defendant/respondents SOLICITORS: James Conomos Lawyers for the plaintiff/applicant The defendant/respondents appeared on their own behalf [1] AMBROSE J: On 25 June 2003 I dismissed the plaintiff’s application and action. [2] I intimated that the defendants should recover their costs to be assessed reserving two questions in respect of which further written submissions might be made within one month. I advised that should counsel wish to make oral submissions in addition to written submissions with respect to costs they should arrange with my associate to fix a convenient time. [3] Written submissions for costs were received from the plaintiff on 25 July 2003. -- 1 of 2 -- 2 [4] No written submissions or request to make oral submissions with respect to costs has been received from the defendants or counsel for the defendants. [5] The issues in respect of which I invited submissions from the parties were whether the plaintiff liquidator ought pay the costs of the application and action personally and not out of whatever monies might remain from what has already been received upon the plaintiff’s liquidation and whether such costs ought be assessed on an indemnity basis. [6] On the first day of the hearing of the plaintiff’s application on 14 May 2003 serious allegations were made against the liquidator – Mr Nicholls – concerning the proprietary of his liquidation of the plaintiff. I refer to paras 11, 12, 15, 37, and 43 of my reasons for judgment published on 25 June 2003. [7] I adhere to the view which I expressed in para 43 of those reasons that it was inappropriate upon the hearing of the plaintiff’s application to determine matters relating to issues involving the propriety of his liquidation of the plaintiff raised by the first defendant/respondent upon the hearing of the application. [8] There has been no material advanced on behalf of the defendants as to expenditures incurred by them, which might be recoverable as their costs to be assessed on a standard basis. [9] I have not endeavoured to consider the basis upon which counsel for the defendants/respondents appeared for them on 3 June 2003. I assume that in the light of information I gave when delivering judgment in this matter on 25 June 2003 had costs been recoverable by the defendants in respect of the retainer of Mr Aitken to appear for them on that occasion, I would have received written submissions to support the making of an order, which would involve either him or the defendants recovering such expense under an order for costs made against the plaintiff. [10] In dismissing the plaintiff’s action and application I refrained from making any findings relating to the propriety with which the plaintiff’s liquidator conducted the liquidation or commenced this action against the defendants. [11] Should the defendants/respondents wish to pursue this matter or Mr Nicholls entitlement to fees and costs incurred in the course of liquidation it would be appropriate to do so in other proceedings. [12] In the circumstances and in particular in the absence of any submissions from the defendants to deal with arguments raised by counsel for the plaintiff, it is inappropriate to give further consideration to the questions I reserved in para 86 of my reasons for judgment. [13] I order therefore that the plaintiff pay to the defendants their costs of and incidental to the plaintiff’s action and application to be assessed on a standard basis. [14] The costs recoverable by the defendants/respondents will be a matter for assessment by the registrar who no doubt will consider upon the material placed before him by the parties whether any order should be made with respect to expenses which may have been incurred by or on behalf of the defendants/respondents in having Mr Aitken of counsel appear for them on 3 June 2000. -- 2 of 2 --