FEDERAL COURT OF AUSTRALIA

Charben Haulage Pty Limited (In Liquidation) ACN 083 376 701, in the matter of Charben Haulage Pty Limited (In Liquidation) ACN 083 376 701 (No 2)

[2010] FCA 614

IN THE MATTER OF CHARBEN HAULAGE PTY LIMITED (IN LIQUIDATION)

ACN 083 376 701

THE COURT ORDERS THAT:

1.                  50% of the plaintiff’s costs in this proceeding be treated as the plaintiff’s costs in NSD 623/2010.

2.                  The costs of the defendants in this proceeding be their costs in NSD 623/2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE MATTER OF CHARBEN HAULAGE PTY LIMITED (IN LIQUIDATION)

ACN 083 376 701

REASONS FOR JUDGMENT

1                                             On 14 May I made orders under s 588FF(3)(b) of the Corporations Act 2001 (Cth), extending the period within which the plaintiff might commence a proceeding under that section in respect of payments made by Charben Haulage Pty Limited to Mr Jim Janakis, Mrs Victoria Janakis and to Tidal Surge Pty Limited between 24 March 2005 and 1 April 2006.  I indicated on 14 March 2010 that, if such a proceeding were commenced, it may be appropriate for at least part of the costs of this proceeding to be the parties’ costs in that new proceeding.  Pursuant to that leave, a new proceeding, NSD 623/2010, was commenced on 2 June 2010. 

2                                             Some part of the need for making this application must be laid at the feet of the plaintiff, in that there were considerable delays that were not satisfactorily explained.  Nevertheless, I did not regard those delays as an appropriate basis for rejecting the application to extend time.  However, the delay is a relevant factor in deciding the question of costs.  The respondents in the new proceeding contend that the appropriate course is that it is only their costs that should be the costs in the new proceeding.  I consider the appropriate course is to order that:

·        one half of the plaintiff’s costs in this proceeding be treated as the plaintiff’s costs in the new proceeding, and

·        the costs of the respondents in this proceeding be their costs in the new proceeding.

3                                             The plaintiff also sought relief in respect of two other parties, Messrs Theodore and Steve Paradisis, who were not separately represented in the proceeding.  They did not seek to be joined as parties to the proceeding.  In the circumstances, notwithstanding that the plaintiff ultimately did not proceed against Steve and Theodore Paradisis, I consider that it is appropriate to make no order as to their costs. 

Associate:

Dated:         15 June 2010