McCallum, in the Matter of Re Holdco Pty Ltd (Administrators Appointed) (No 3)

• Jurisdiction: Australia Federal only
• Judgment Date: 05 August 2021
• Neutral Citation: [2021] FCA 913
• Court: Federal Court
• Date: 05 August 2021

Federal Court of Australia

McCallum, in the Matter of Re Holdco Pty Ltd (Administrators Appointed) (No 3) [2021] FCA 913

File number:	VID 285 of 2020
Judgment of:	O'BRYAN J
Date of judgment:	5 August 2021
Catchwords:	COSTS – disputed claims to the proceeds of sale of assets of companies in voluntary administration and, subsequently, liquidation – whether circumstances of case analogous to trusts dispute or ordinary inter partes litigation – whether any reason to depart from usual rule that costs should follow the event – appropriate methodology to calculate costs
Legislation:	Corporations Act 2001 (Cth) ss 442C, 447A Federal Court of Australia Act 1976 (Cth) s 43(2) Personal Property Securities Act 2009 (Cth) Federal Court Rules 2011 (Cth) r 40.02(b)
Cases cited:	Alsop Wilkinson (a firm) v Neary [1996] 1 WLR 1220 Bayley & Associates Pty Ltd v DBR Australia Pty Ltd [2014] FCA 346 Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 Chand v Azurra Pty Ltd (in liq) [2011] NSWCA 58; 82 ACSR 383 Davies v Lazer Safe Pty Ltd (No 2) [2019] FCAFC 118 Fewin Pty Ltd v Burke (No 3) [2017] FCA 693 Freedom Foods Pty Ltd v Blue Diamond Growers [2021] FCAFC 86 Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd [2008] FCA 1051; 249 ALR 371 Gonzales v Claridades (2003) 58 NSWLR 188 Greenham v Greenham (No 2) [2020] VSC 850 Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7 Kazar (Liquidator) v Kargarian; In the matter of Frontier Architects Pty Ltd (In Liq) (2011) 197 FCR 113 Les Laboratoires Servier v Apotex Pty Ltd (2016) 247 FCR 61 McCallum, in the Matter of Re Holdco Pty Ltd (Administrators Appointed) [2020] FCA 666; 145 ACSR 243 McCallum, in the Matter of Re Holdco Pty Ltd (Administrators Appointed) (No 2) [2021] FCA 377 McDermott & Potts; re Lonnex Pty Ltd (in liq) (No 2) (2019) 57 VR 238 McDonald v Horn [1995] 1 All ER 961 Nine Films and Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 Re Buckton; Buckton v Buckton [1907] 2 Ch 406 Re Cunningham; Sproule v Quested (1914) 31 WN (NSW) 44 Silvia v Brodyn Pty Ltd [2007] NSWCA 55; 25 ACLC 385 Sons of Gwalia Ltd (Subject to Deed of Company Arrangement) v Margaretic [2006] FCAFC 92; 232 ALR 119 Telstra Corporation Ltd v Phone Directories Co Pty Ltd [2011] FCA 1463 Zafra Legal Pty Ltd v Harris (Liq) (No 3) [2021] FCA 441
Division:	General Division
Registry:	Victoria
National Practice Area	Commercial and Corporations
Sub-area	Corporations and Corporate Insolvency
Number of paragraphs:	49
Date of last submission:	28 June 2021
Date of hearing:	Determined on the papers
Solicitor for the Plaintiffs:	The plaintiff did not make submissions on costs
Solicitor for the First Interested Party:	The first interested party did not make submissions on costs
Counsel for the Second and Third Interested Parties:	H N G Austin QC with A C Roe
Solicitor for the Second and Third Interested Parties:	Ashurst
Counsel for the Fourth Interested Party:	O Bigos QC
Solicitor for the Fourth Interested Party:	MinterEllison
Counsel for the Fifth and Sixth Interested Parties:	B McLachlan
Solicitor for the Fifth and Sixth Interested Parties:	Arnold Bloch Leibler

ORDERS

		VID 285 of 2020
IN THE MATTER OF RE HOLDCO PTY LTD (ADMINISTRATORS APPOINTED) (ACN 612 592 471), RSE HOLDCO PTY LTD (ADMINISTRATORS APPOINTED) (ACN 612 586 893), SARGON CT HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 628 621 321), SC INTERNATIONAL HOLDINGS 2 PTY LTD (ADMINISTRATORS APPOINTED) (ACN 630 632 343), SARGON SUPERANNUATION HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 630 648 225), SARGON SERVICES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 163 522 058) AND SARGON SUPERANNUATION HOLDINGS SPV PTY LTD (ADMINISTRATORS APPOINTED) (ACN 633 509 494)
BETWEEN:	STEWART MCCALLUM and ADAM NIKITINS IN THEIR CAPACITY AS JOINT AND SEVERAL ADMINISTRATORS OF RE HOLDCO PTY LTD (ADMINISTRATORS APPOINTED) (ACN 612 592 471), RSE HOLDCO PTY LTD (ADMINISTRATORS APPOINTED) (ACN 612 586 893), SARGON CT HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 628 621 321), SC INTERNATIONAL HOLDINGS 2 PTY LTD (ADMINISTRATORS APPOINTED) (ACN 630 632 343), SARGON SUPERANNUATION HOLDINGS PTY LTD (ADMINISTRATORS APPOINTED) (ACN 630 648 225), SARGON SERVICES PTY LTD (ADMINISTRATORS APPOINTED) (ACN 163 522 058) AND SARGON SUPERANNUATION HOLDINGS SPV PTY LTD (ADMINISTRATORS APPOINTED) (ACN 633 509 494) Plaintiffs

order made by:	O’BRYAN J
DATE OF ORDER:	5 AUGUST 2021

THE COURT ORDERS THAT:

1. The fourth interested party pay the costs of the proceeding of the second and third interested parties which:

1. were incurred on and after 15 May 2020;

2. relate to the issues raised by the notice of claim filed by the fourth interested party on 15 May 2020 (excluding all valuation issues); and

3. would not have been incurred but for the notice of claim filed by the fourth interested party on 15 May 2020.

2. The fifth and sixth interested parties pay the costs of the proceeding of the second and third interested parties which:

1. were incurred on and after 15 May 2020;

2. relate to the issues raised by the notice of claim filed by the fifth and sixth interested parties on 15 May 2020 (excluding all valuation issues); and

3. would not have been incurred but for the notice of claim filed by the fifth and sixth interested parties on 15 May 2020.

3. If not agreed, the costs referred to in orders 1 and 2 be awarded in a lump sum pursuant to rule 40.02(b) of the Federal Court Rules 2011 (Cth).

4. The quantification of the costs awarded under orders 1, 2 and 3, and the making of such further orders and directions in connection therewith, be referred to a Registrar of the Court for determination.

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

SCHEDULE OF INTERESTED PARTIES

First Interested Party	Westpac Banking Corporation (ACN 007 457 141)
Second Interested Party	Sargon Capital Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (ACN 608 799 873)
Third Interested Party	Taiping Trustees Limited
Fourth Interested Party	GrowthOps Services Pty Ltd (ACN 626 208 777)
Fifth Interested Party	Diversa Pty Ltd (ACN 079 201 835)

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