In the matter of C&V Engineering Co Pty Ltd and Pizzolato Nominees Pty Ltd

By my judgment delivered on 4 August 2025 ([2025] NSWSC 857) (“Principal Judgment”), I held that an order should be made under s 175 of the Corporations Act 2001 (Cth) to correct the share registers of C & V Engineering Co Pty Ltd (“CVE”) and Pizzolato Nominees Pty Ltd (“PNP”) where the only defences to such relief that were pressed by the Defendants had failed. I observed at paragraph [73] of my Principal Judgment that:

On 12 August 2025, the Plaintiff (to whom I will again refer, as in my Principal Judgment, as Vittoria) submitted Short Minutes of Order which gave effect to the conclusions which I had reached as to rectification of the share registers of CVE and PNP.

The First and Second Defendant (to whom I will again refer to, as in my Principal Judgment, as Mario and Antonella respectively) instead propose that the order to be made in respect of CVE should record each of Vittoria, Mario and Antonella as holding 66 shares and the three shareholders as holding one further share as tenants-in-common. Mr d’Arville, who appears for Mario and Antonella, submits, and I accept, that a position where the three shareholders hold their shares as tenants-in-common may well give rise to practical difficulty, where there has been significant acrimony between them. However, that is not a matter that that I can address, after the event, by an alteration of the form of order in a manner that is not by consent and does not reflect any argument at the hearing. I also do not consider that I should grant leave to reopen, which Mario and Antonella sought in submissions, to tender further documents as to this issue at this point, where these matters could readily have been addressed, but were not, at the hearing. I gave Vittoria the opportunity to consent to the amended form of order now sought by Mario and Antonella but she did not do so. I do not propose to make that order in an amended form where it is not by consent of the parties and does not reflect any issue addressed at the hearing. There is no such difficulty as to the form of the second order in respect of PNP.

Mario and Antonella also propose that I should insert a time requirement in the orders. I will not do so, where Vittoria does not seek orders in that form and the absence of specification of that time will require that the relevant steps be undertaken within a reasonable time.

As Vittoria had foreshadowed at the hearing, she also sought an order that the Mario and Antonella pay her costs of the proceedings on an indemnity basis, as assessed or agreed.

Mr Alexis, with whom Mr Speirs appeared for Vittoria, drew attention to my summary of the applicable principles in relation to indemnity costs orders in Re Hermitage Engadine Pty Ltd [2025] NSWSC 414 at [18] as follows:

Mr Alexis also referred to the observations of Brereton J in Hermes Far Eastern Shining Pty Ltd v Potable Gold Strike Pty Ltd [2025] NSWSC 263 at [32] that:

Mr Alexis submitted that an order for indemnity costs should be made by reference to, relevantly, Mario’s suggested delay in respect of the proceedings and the fact that an order for substituted service was required in respect of him; further delays by Mario and Antonella in filing and serving affidavit evidence; an unsuccessful application to vacate the hearing date that they made on 4 July 2025; the abandonment of a defence under the Limitations Act 1969 (NSW) (“Limitations Act”) shortly before the hearing; and the maintenance of other defences based on delay. Mr Alexis also referred to the rejection of significant parts of their affidavit evidence as inadmissible and the fact that they ultimately withdrew Antonella’s affidavit after it was read, although I recognise that that likely reflected rulings as to the inadmissibility of significant parts of that affidavit. Mr Alexis also submits that their remaining defences were “manifestly hopeless”.

Mario and Antonella accept that they should pay the Plaintiff’s costs of the proceedings on an ordinary basis. Mr d’Arville submits that there is no evidence to support the submission that Mario sought to evade service, and I make no such finding. He also submits and, I accept, that the delay in filing Mario’s and Antonella’s affidavit evidence was not significant, at least by comparison with Vittoria’s delay in commencing the proceedings; the application to vacate the hearing date did not reflect delinquency, where it reflected Mario’s ill-health; and Vittoria already has a costs order in her favour in respect of that application. Mr D’Arville also submits that for indemnity costs to be awarded on the basis that their defence was “manifestly hopeless” it would need to be demonstrated that they, properly advised, should have known that they had no chance of success and an award of indemnity costs on that basis has a relatively high threshold: Chaima v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [113]; Re Sydney Hire NSW Pty Ltd [2023] NSWSC 1580 at [25]. He also submits, and I also accept, that the assessment of Vittoria’s delay in seeking relief on the one hand and the other matters referred to in my Principal Judgment on the other, involved a balancing exercise as to which minds might differ.

I am not persuaded I should make an order for indemnity costs here. I recognise that Vittoria was required to seek an order for substituted service in respect of Mario, and there was some delay in the filing and service of Mario’s and Antonella’s affidavit evidence, but those matters are adequately addressed by an order for costs on an ordinary basis. The abandonment of the Limitations Act defence promoted, rather than retarded, the just quick and cheap resolution of the real issues in dispute in the proceedings. The issues as to admissibility of Mario’s and Antonella’s affidavit evidence are only likely to have had an adverse impact on their case and not on Vittoria and their defence by reference to Vittoria’s delay in seeking relief was unsuccessful rather than manifestly hopeless, where that delay was significant. For these reasons, I propose to make an order for costs against Mario and Antonella on an ordinary basis.

I therefore make the following orders: