In the matter of Gutsy Jnr Pty Limited

[2015] NSWSC 2046

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Gutsy Jnr Pty Limited [2015] NSWSC 2046
Hearing dates:	13 April 2015
Date of orders:	13 April 2015
Decision date:	13 April 2015
Jurisdiction:	Equity - Corporations List
Before:	Brereton J
Decision:	Defendant to pay plaintiff’s costs assessed at $7,700.
Catchwords:	COSTS – where statutory demand set aside by consent of parties – where reasonable costs incurred by plaintiff – held, plaintiff to pay defendant’s costs as assessed.
Legislation Cited:	(Cth) Corporations Act 2001, s 459G
Cases Cited:	Re Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Category:	Costs
Parties:	Narragall Holdings Pty Ltd (ACN 161 142 114) Gutsy Jnr Pty Ltd (ACN 161 911 968)
Representation:	Counsel: J R Willis (plaintiff) M Chenoweth (solicitor) (defendant)   Solicitors: Ashley Rose Legal (plaintiff) O’Neill Partners Commercial Partners Incorporating Sally Nash & Co (defendant)
File Number(s):	2015/60347

Judgment (ex tempore)

1. HIS HONOUR: By originating process filed on 26 February 2015, the plaintiff Nargol Holdings Pty Limited seeks an order pursuant to (Cth) Corporations Act 2001, s 459G, setting aside a statutory demand dated 5 February 2015 served on it by the defendant Gutsy Jnr Pty Limited. For some reason, the proceedings have been wrongly entitled In the matter of Gutsy Jnr Pty Limited when they should be entitled In the matter of Narragall Holdings Pty Limited, it being the company concerned in the application. The parties have since agreed that the statutory demand should be set aside. The plaintiff seeks an order that the defendant pay its costs, assessed on the indemnity basis. The defendant submits that there should be no order as to costs, and alternatively that any order should be made on some other basis, including deferring any order until proceedings in respect of the claimed debt are determined elsewhere.

2. As it seems to me, there is no relevant delinquency in the service of the statutory demand. It is true that it relied on an oral agreement, but that of itself does not mean that a dispute is inevitable. The correspondence that preceded it contained what appeared to be repeated assurances that payment of the claimed debt would be made, and the service of the statutory demand was preceded by a solicitor's letter foreshadowing such a demand, to which there was no response before the demand was issued.

3. On the other hand, the outcome of the proceedings is that the demand has been set aside. This is not a case in which there is an element of compromise in that outcome, of the kind that might attract the approach in Re Minister for Immigration and Ethnic Affairs (Cth); Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622. As the demand is to be set aside, it would ordinarily follow that a costs order should be made in favour of the successful plaintiff.

4. In addition to the filing fee, the plaintiff will reasonably have incurred the costs of taking instructions; drafting an initiating process in more or less standard form, seeking a single order of one paragraph; drafting a supporting affidavit, which comprises 16 paragraphs; obtaining the requisite searches in support of that; filing and serving the application; attending on a directions hearing and attending on the final hearing. In addition, there has been some inter-partes correspondence.

5. It seems to me that an allowance of $7,700 (inclusive of GST) is appropriate on a party-party basis.

6. The Court, by consent, orders that:

1. The statutory demand dated 5 February 2015 served by the defendant on the plaintiff be set aside.

7. The Court further orders that:

1. The defendant pay the plaintiff's costs as assessed in the sum of $7,700.

8. The exhibits may be returned.

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