Event and Time
Event Description
The case revolves around a costs order made against two respondents, Lyndons and Stair Lock, in a proceeding concerning Cullen Group Australia Pty Ltd (in liquidation). The respondents did not attend the hearing or the delivery of the costs judgment, leading them to seek to set aside the costs order.
Application and Claims
Cullen Group Australia Pty Ltd and its liquidator sought recovery of unfair preferences under s 588FF of the Corporations Act 2001 against multiple respondents, including Lyndons and Stair Lock. The preliminary question was whether Cullen was insolvent at the relevant time, which was determined in the affirmative. The dispute primarily focused on the implications of Lyndons and Stair Lock's absence from the hearings and the reasonableness of their explanation for not attending.
Judicial Decisions
The court ruled that Lyndons and Stair Lock have the leave to appeal the costs order made on December 16, 2020, but dismissed other aspects of their application. Furthermore, costs related to this application were reserved for determination by the Court of Appeal.
Dispute Points and Legal Basis
Dispute Points
- Lyndons and Stair Lock's Claims:
- They did not appear at the hearing based on the understanding that costs would be reserved by Cullen, as indicated in the correspondence. - They argued they would have made an appearance had they known costs would be determined during the hearing.
- Cullen's Arguments:
- Cullen contended that Lyndons and Stair Lock were fully aware of the litigation process, including the potential costs implications. - Asserted that the absence of the respondents could be interpreted as a waiver of their right to contest the costs order.
- Third Party Opinions:
- Referring to the precedent set in cases like and , both sides leveraged the criteria established in these cases regarding setting aside judgments made in default.