Azmac Pty Limited (No 2) [2020] NSWSC 363

"The liquidator personally, or the company?"

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Judgment was handed down confirming Co A was a secured creditor of Co B (in liq): [1] 

The next question was: who pays Co A’s legal costs? Co A sought to have Co B’s liquidator, in his personal capacity, pay. 

A liquidator will be personally liable for costs in “exceptional circumstances” due to unreasonable conduct: [8] 

The Court considered the facts to form a view about reasonableness.

Early in the liquidation, the liquidator behaved as if Co A was a secured creditor including sending an email Co A described as an ‘undertaking’ to that effect: [21], [22]

Later, the liquidator pivoted from this position (apart from admitting that a nominal sum was secured): [24]

Land, which was Co B’s chief asset, was sold. The proceeds were applied to, among other things, the liquidator’s remuneration: [25]

The liquidator’s change from first accepting Co A was secured creditor and then bitterly [36] resisting that suggestion was self-interested: [46]

It was also unreasonable and unnecessary, meaning the litigation was provoked by the liquidator, such that Co A’s legal costs ought to be personal visited on him: [46]