Case: DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251
Outcome: applied
In my view I do have power to make the order sought by WCNI. The power is to be found in s 43 of the Federal Court of Australia Act 1976 (Cth). In DSE (Holdings) Pty Ltd v InterTAN Inc [2004] FCA 1251 at [14] , Allsop J said that s 43 is a broad and ample power, which is not to be read down otherwise than by judicial principle conformable with its amplitude. His Honour's remarks were made in a different context, but I consider that they are applicable to the present application. 9 It seems to me that what is necessary for the exercise of the power is to find some connection between the Supreme Court proceeding and the proceeding in this Court, in order to justify the order for payment of the supporting creditor's costs, including the costs of commencing in the Supreme Court, out of the process of the winding-up. 10 The course which has been followed by WCNI, in coming to this Court as the supporting creditor, is the cheapest and most expedient course which could have been followed. In my view this step has rationalised the processes before this Court and has, indeed, rationalised both sets of proceedings, in a way which produces the most convenient and expeditious result in terms of costs incurred in the Court's processes. 12 In my view the order which is sought, therefore, falls within the broad power to which Allsop J referred in considering the amplitude of s 43 of the Federal Court Act . It follows that I propose to accede to the application made to me by Mr Davis of counsel for WCNI. 13 Mr Davis's instructing solicitor is in Court and he has informed me that when the Supreme Court proceedings are returnable on 6 March, an order will be sought that the proceedings be dismissed, with no order as to costs. Plainly, the Supreme Court could not now entertain the application to wind-up the company, because I will make a winding-up order this afternoon and in light of the course proposed today, the obvious approach in the Supreme Court is that there be no order as to costs sought in that matter. Mr Davis's instructing solicitor has undertaken to the Court to seek those orders in the Supreme Court on 6 March 2008. 14 Accordingly, the orders that I will make this afternoon are as set out in [1] to [3] of the originating process filed by the Deputy Commissioner of Taxation on 24 January 2008. I will also order that the costs of WCNI, as supporting creditor, be paid out of the assets of the defendant, and in particular that those costs include the costs of WCNI of and incidental to proceedings No. 1199 of 2008 in the Supreme Court of New South Wales, Equity Division. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 10 March 2008 Solicitor for the Plaintiff: Church &amp; Grace The Defendant did not appear. Counsel for the Supporting Creditor: Mr A Davis Solicitor for the Supporting Creditor: Jones King Lawyers Date of Hearing: 29 February 2008 Date of Judgment: 29 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/202.html