The High Court has dismissed Print and Display Limited’s application to remove Liam Dowdall as liquidator of Dominar Group Limited and ordered costs in Mr Dowdall’s favour, including reserved costs. Enforcement of the costs order is stayed until the appeal period expires or, if an appeal is lodged, until it is determined.
The ruling, delivered by Mr Justice Mark Sanfey on 24 July 2020, dealt with costs and a stay after the court had refused the removal application in a judgment delivered on 8 May 2020. The court said the refusal was the “event” for deciding costs. It considered whether the usual rule that costs follow the event should be departed from.
Print and Display argued that the costs should be assessed in light of how the case developed, including a contested application to cross-examine the liquidator, the notice party’s late participation, information that emerged during the hearing, alleged gaps in documentary disclosure, the response to a pre-action letter, and progress towards selling the company’s Osmanska site. It also sought a stay if costs were awarded and an appeal followed.
The respondent argued that the failed removal application was fundamentally misconceived and that the applicant had not shown grounds to depart from the usual costs rule. He said the cross-examination motion had succeeded only in part, no discovery had been sought, and the notice party’s late participation was not the liquidator’s responsibility.
Mr Justice Sanfey treated the cross-examination application’s costs as costs in the cause. Although Print and Display had obtained some permission to cross-examine, the court said the scope sought had been significantly curtailed. The evidence ultimately did not help the applicant obtain the relief it sought.
The judge rejected the applicant’s other arguments for changing the costs outcome. He said the notice party’s support for the respondent should not have come as a surprise; it was not a change in the case’s “landscape”. He found no basis to conclude that information emerging during the hearing had materially affected the decision to bring the application, and noted that no discovery had been sought. The respondent had notified the applicant on 20 June 2018 that the Osmanska site was free of restitution claims, removing the last obstacle to realising the company’s last asset. The court also said the respondent could not be held responsible for the applicant proceeding without a substantive response to its 28 June 2018 letter, after being told he was on annual leave.
The court ordered costs, including reserved costs, for the respondent, to be assessed if not agreed. It granted the stay sought, citing the case’s complexity, substantial legal issues and the possibility that an appeal could affect the respondent’s entitlement to fees. The earlier refusal of the removal application remained in place.