Hegde, in the matter of Nutricare Holdings Limited v Nutricare Holdings Limited (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 29 January 2021
• Neutral Citation: [2021] FCA 33
• Date: 29 January 2021

Federal Court of Australia

Hegde, in the matter of Nutricare Holdings Limited v Nutricare Holdings Limited (No 2) [2021] FCA 33

File number:	QUD 268 of 2020
Judgment of:	REEVES J
Date of judgment:	29 January 2021
Catchwords:	COSTS – application for costs on a standard basis – application for costs on an indemnity basis – where each party was variously successful on some aspects of the application and unsuccessful on others – where several offers of compromise were made and rejected – whether it was reasonable for each of the parties to reject the offers of compromise – each party to bear its own costs
Legislation:	Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth)
Cases cited:	ALDI Foods Pty Limited as General Partner of ALDI Stores (A Limited Partnership) v Transport Workers’ Union of Australia [2020] FCAFC 231 Anchorage Capital Partners Pty Limited v ACPA Pty Ltd (No 2) [2018] FCAFC 112 Associated Steamships Pty Ltd v Seafarers Safety, Rehabilitation and Compensation Authority (No 2) [2020] FCA 853 Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194 CGU Insurance Limited v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173 Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88 Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) (2015) 327 ALR 192; [2015] HCA 53 Hegde, in the matter of Nutricare Holdings Limited v Nutricare Holdings Limited [2020] FCA 1646 New South Wales Lotteries Corporation Pty Ltd v Kuzmanovski (No 2) [2011] FCAFC 152 Pinnacle Runway Pty Ltd v Triangl Limited (No 3) [2020] FCA 1379 Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368 Rhodium Australia Pty Ltd v Deputy Commissioner of Taxation [2012] FCAFC 17 Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd (ACN 008 650 628) (2010) 265 ALR 112; [2010] FCAFC 16 The State of Victoria v Sportsbet Pty Ltd (No 2) [2012] FCAFC 174 Trenfield, In the matter of ACN 089 008 668 Pty Ltd (in liq) v JMD Park Pty Ltd (No 2) [2020] FCA 45 Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 Whitney v Dream Developments Pty Ltd (2013) 84 NSWLR 311; [2013] NSWCA 188
Division:	General Division
Registry:	Queensland
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Number of paragraphs:	83
Date of last submissions:	3 December 2020
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Mr A Collins
Solicitor for the Applicant:	Macpherson Kelley
Counsel for the First Respondent:	The First Respondent did not appear
Counsel for the Second and Fourth to Seventh Respondents:	The Second and Fourth to Seventh Respondents each filed a Submitting Notice
Counsel for the Eighth Respondent:	Mr BF Katekar SC with Mr D Habashy
Solicitor for the Eighth Respondent:	Dentons
Counsel for the Third Respondent:	The Third Respondent did not appear

ORDERS

		QUD 268 of 2020
IN THE MATTER OF NUTRICARE HOLDINGS LIMITED (ACN 613 504 724)
BETWEEN:	SHARATH HEGDE Applicant
AND:	NUTRICARE HOLDINGS LIMITED (ACN 613 504 724) First Respondent ; JAMES DUTTON Second Respondent ; TRAVIS SMITHSON (and others named in the Schedule) Third Respondent

order made by:	REEVES J
DATE OF ORDER:	29 January 2021

THE COURT ORDERS THAT:

1. Each party is to bear its own costs of this proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

REEVES J:

1. On 12 November 2020, I delivered my reasons for judgment in this matter: Hegde, in the matter of Nutricare Holdings Limited v Nutricare Holdings Limited [2020] FCA 1646 (the primary judgment). At the same time, I directed the parties to submit to my chambers a draft set of orders to reflect the contents of those reasons. The orders that were subsequently made based on the draft so submitted included the following:

THE COURT DECLARES BY CONSENT THAT:

1. The applicant has never resigned as a director of the first respondent.

2. Notwithstanding the fact that the applicant resigned as an employee of the first respondent with effect from 29 May 2020, the circulating resolution signed by the second respondent on 19 May 2020, by the applicant on 25 May 2020 and by the third respondent on 12 June 2020, was effective to continue the applicant’s appointment as a director of the first respondent from at least 12 June 2020.

3. The resolution made on or about 25 August 2020 by which the second respondent purported to appoint the following individuals as directors of the first respondent was invalid:

(a) Mark James Casey;

(b) Mike Tauschek;

(c) Hammad Atassi; and

(d) Kimberlee Ann Boribon.

4. The resolutions passed at the 12 October 2020 Extraodinary [sic] General Meeting of the first respondent to ratify the appointments of the following individuals as directors of the first respondent on 25 August 2020 were invalid:

(a) Mark James Casey;

(b) Mike Tauschek;

(c) Hammad Atassi; and

(d) Kimberlee Ann Boribon.

5. The resolutions passed at the 12 October 2020 Extraordinary General Meeting of the first respondent to appoint the following individuals as directors of the first respondent were valid:

(a) Mark James Casey;

(b) Mike Tauschek;

(c) Hammad Atassi; and

(d) Kimberlee Ann Boribon.

THE COURT ORDERS BY CONSENT THAT:

6. Pursuant to s 1322(4)(b) of the Corporations Act 2001 (Cth):

(a) The register kept by the Australian Securities and Investments Commission under the Corporations Act 2001 (Cth) be rectified within 14 days to reflect the declarations made at paragraphs 1 to 3 above (to the extent...