In the liquidation of Cullen Group Australia Pty Ltd (in liq), the liquidator commenced a mothership proceeding against 29 respondents asserting that certain payments made by the company were unfair preferences. On 16 December 2020, Justice Martin determined the question of insolvency as a preliminary question.
Succeeding on the preliminary question and relying on Re Bias Boating Pty Ltd (in liq) (2019) 135 ACSR 27, the liquidator sought costs against the respondents who agreed to abide by the Court’s order on the preliminary question; the liquidator succeeded on this issue.
But against two respondents, who had admitted the question before it was determined, the liquidator sought costs up to the admission. These respondents sought to distinguish Re Bias Boating (in liq) on grounds including that they admitted the question within the regime laid down by the court.
Distinguishing Re Bias Boating (in liq), Justice Martin was satisfied that the proper exercise of discretion resulted in the liquidator’s costs of determining the preliminary question be costs in the proceeding.
Anthony Messina appeared for a successful respondent concerning costs, instructed by Scoglio Law.
The judgment is published here.