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

File Number(s): 2024/247499

JUDGMENT

Background

1. 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:

“My preliminary view is that [the First and Second Defendants] (but not [the Third and Fourth Defendants]) must pay the costs of the proceedings, as agreed or as assessed, and I recognise that [the Plaintiff] has foreshadowed an application that those costs be paid on an indemnity basis. I direct the parties to bring in agreed short minutes of order to give effect to this judgment, including as to costs, within 14 days and, in the event of disagreement, their respective draft orders and submissions not exceeding five pages in Arial font 12, one and a half spacing as to the differences between them.”

Form of orders for rectification of the share registers

2. 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.

3. 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.

4. 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.

Costs

5. 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.

6. 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:

“The applicable principles as to an order for indemnity costs are also well-established. Costs are awarded on an ordinary basis unless there are exceptional circumstances: Leichhardt Municipal Council v Green [2004] NSWCA 341. An order for indemnity costs is not made to punish an unsuccessful plaintiff for persisting with a case that fails, but to compensate a successful defendant fully for costs incurred, when the Court takes the view that it was unreasonable for the plaintiff to have subjected that party to the expenditure of costs: Hamod v New South Wales (2002) 188 ALR 659; [2002] FCAFC 97 at [20]. In Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 7) (2008) 65 ACSR 324; [2008] NSWSC 199, McDougall J observed (at [24]) that there must usually be some special or unusual feature to justify departure from the ordinary rule as to costs, and that delinquency is not necessary for an order for indemnity costs, but is relevant to whether it should be made. The relevant principles were also considered by the Court of Appeal in Cabport Pty Ltd v Marinchek (No 2) [2013] NSWCA 131 at [6], where the Court observed that an order for indemnity costs may be made where a party’s conduct in proceedings is plainly unreasonable or involves an element of delinquency, and by Bell CJ in Brown v Stables Perisher Management Pty Ltd (No 2) [2022] NSWSC 902. [Counsel] also refers to my summary of the principles applicable to an award of indemnity costs in Re Allscope Concrete & Pumping Pty Ltd (in liq) [2024] NSWSC 1680 at [5], in substantially the terms that I have set out above. He also gives examples of several circumstances in the case law in which orders for indemnity costs have been made.”

7. 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:

“I accept that there is some force in the submission that a party should not be discouraged from abandoning a bad case for fear of an indemnity costs order. However, it is also true that litigants should be discouraged from maintaining cases that are hopeless. The risk of indemnity costs would serve to encourage a litigant with a hopeless case to abandon the case sooner rather than later.”

8. 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”.

9. 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.

10. 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 Limitation**s 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.

Orders

11. I therefore make the following orders:

12. Order pursuant to section 175 of the Corporations Act 2001, that the register of C&V Engineering Co Pty Ltd (ACN 002 078 248) be corrected to record the members as Vittoria Marques, Antonella Pizzolato and Mario Pizzolato as tenants in common in equal shares as to 200 ordinary shares.

13. Order pursuant to section 175 of the Corporations Act 2001, that the register of Pizzolato Nominees Pty Ltd (ACN 114 625 179) be corrected to record the members as follows:

i. Vittoria Marques, Antonella Pizzolato and Mario Pizzolato as tenants in common in equal shares: 2 ordinary shares.

ii. Antonella Pizzolato: 1 ordinary share.

iii. Mario Pizzolato: 1 ordinary share.

3. Order that the First and Second Defendants pay the Plaintiff's costs of the proceedings on an ordinary basis, as assessed or agreed.

**********