Kruger v Thompson

1. The appellants pay the respondent's costs of and incidental to the appeal on a standard basis, to be taxed; and
2. The sum of $40,000 (and any interest accrued thereon) paid by the first appellant into a controlled moneys account as security for costs of the respondent on or around 6 November 2024 pursuant to order 13 of the orders of Justice McElwaine made on 24 October 2024 is to be released to the respondents forthwith.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NEIL ROBERT CUSSEN IN HIS CAPACITY AS THE LIQUIDATOR OF MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

1. The appellants pay the respondent's costs of and incidental to the appeal on the standard basis, to be taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NEIL ROBERT CUSSEN IN HIS CAPACITY AS THE LIQUIDATOR OF MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

1. The appellants pay the respondent's costs of and incidental to the appeal on the standard basis, to taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NEIL ROBERT CUSSEN IN HIS CAPACITY AS THE LIQUIDATOR OF MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

MONARCH TOWER PTY LTD (IN LIQUIDATION) (ACN 606 801 647)

RILL TRADING RESOURCES INC (BRITISH VIRGIN ISLANDS COMPANY NUMBER 448249)

1. Each party is to bear their own costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).

1. These reasons address various costs applications in consequence of the orders made on 9 October 2025: Cussen, in the matter of Monarch Tower Pty Ltd (in liq) [2025] FCAFC 137 (primary reasons). It is notable that the position of some of the parties was not clarified until costs orders were agreed by consent in matters VID 754/2024 on 20 January 2026 (each party is to bear their own costs of the appeal) and VID 748/2024 on 30 January 2026 (appellants to pay the respondent's costs on the standard basis). That leaves for determination the applications for costs in VID 749/2024, VID 751/2024, VID 752/2024 and VID 753/2024.
2. The orders of 9 October 2025 made provision for consequential costs applications by written submissions to be determined on the papers.
3. In VID 749/2024, the respondent filed a costs submission on 22 October 2025, that Neil Robert Cussen in his capacity as the liquidator of Monarch Tower pay the respondent's costs of and incidental to the appeal on the standard basis and that the amount of $40,000 provided by the liquidator as security for costs be released forthwith to the respondent. No submission opposing those orders has been provided by the liquidator. However, it does not follow that the respondent's application succeeds by default. There is a discretion to be exercised and where the general principles need not be restated at any length as they were conveniently summarised in the decision of this Court in Kruger v Thompson (No 2) [2025] FCAFC 193 at [6] - [7]. In this matter we rejected each of the appellants' arguments and dismissed the appeal. There is no reason why costs should not follow the event. On any view those costs are likely to exceed the quantum of the security and it is therefore appropriate to order its release in partial satisfaction of the costs liability. Accordingly, we make the orders sought.
4. In VID 751/2024, the respondent filed a costs submission on 23 October 2025 that the appellants pay the respondent's costs of and incidental to the appeal on the standard basis. No submission opposing that order has been provided by the liquidator. In this matter there is no reason why costs should not follow the event and we order accordingly.
5. In VID 752/2024, the respondent filed a costs submission on 23 October 2025, in support of orders that the liquidator pay the respondent's costs, including any reserved costs, of and incidental to the appeal personally (and not from the assets of the second appellant) to be taxed on an indemnity basis and that the second appellant pay the respondent's costs, including any reserved costs, of and incidental to the appeal to be taxed on an indemnity basis. To this application, the liquidator responded in submissions filed on 6 November 2025. The issue that divides the parties is the indemnity and personal liability aspects of the application. The respondent submits that the liquidator engaged in unreasonable conduct by commencing the proceeding in deliberate defiance of the rules for service and arrogated to himself when the application to extend time would be made. Further, the proceeding should never have been commenced in circumstances where the liquidator knew that he needed to conduct public examinations to be satisfied that there was a case to answer. Reliance is placed on the decision of the primary judge who concluded that indemnity costs should be ordered.
6. We reject the indemnity costs application. We are not concerned with the liquidator's conduct in commencing the proceeding. In the appeal we observed that the discretionary error grounds were not lacking in merit: primary reasons at [38]. The liquidator's conduct in commencing and prosecuting the appeal was not unreasonable so as to engage the indemnity costs discretion. As to the personal liability order, the liquidator is personally named as the first appellant and Monarch Tower is the second. There is no reason why he should be absolved from personal liability, and no contrary submission is advanced by him. That is the general position: Re Azmac Pty Ltd (in liq) (No 2) [2020] NSWSC 363; (2020) 145 ACSR 443 at [3]- [20]. The appropriate order is that the appellants be ordered to pay the respondent's costs of the appeal. This is not a case to go further and deprive the liquidator of his right of indemnity because of unreasonable conduct in the conduct of the appeal: Azmac at [15].
7. In VID 753/2024, no submissions have been made by the parties. In that circumstance the appropriate order is that each party bear their own costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Sarah C Derrington, Anderson and McElwaine.