Pitak v Sudtipatudom (No 2)

The Court delivered its principal judgment in these proceedings on 23 September 2025 after six hearing days and further written submissions. These reasons assume familiarity, and should be read with, the principal judgment. Defined terms in the principal judgment have the same meaning in these reasons.

1 No later than 21 days after the liquidator has given his unconditional consent thereto pursuant to s 468A(1) of the Corporations Law, the first defendant is to provide to the solicitor for the plaintiffs a duly executed form of transfer of the first defendant’s share in the second defendant to the plaintiffs as tenants in common in equal shares.

2 If the first defendant fails to comply with Order 1, appoint the Registrar in Equity to execute the transfer referred to in Order 1.

3 The proceedings are otherwise dismissed.

4 The Plaintiffs are to pay the First Defendant’s costs of the proceedings.

5 Any party wishing to make any application in relation to costs (including to vacate or vary Order 4) is to serve and file by email to the Associate to Kunc J an outline of submissions and any supporting evidence on or before 30 September 2025.

6 Note that if any party makes an application in accordance with Order 5, the Court will make further directions in chambers for the determination of the application.

7 Liberty to any party to apply in relation to the working out of these orders.

3. Pursuant to Order 5, Nat and Sean (whose written submissions on costs were prepared by Mr A Rogers of Counsel) took up the opportunity to apply that each party should pay their own costs of the proceedings with any earlier costs orders vacated. That application was opposed by Archie (whose written submissions as to costs were prepared by Mr J R Young of Counsel).

4. As is recorded in [3] of the principal judgment, the case as finally argued raised only two issues (being after further entirely proper concessions on behalf of Nat and Sean that various amounts of money claimed by them from Archie were not properly recoverable from him). Nat and Sean failed on both of those issues. The only relief which they succeeded in obtaining was Order 1, which was unopposed in final submissions.

5. The burden of Mr Rogers’ submissions as to costs was to distract attention from his clients’ complete failure on the substantive issues by focusing on having obtained Order 1. He submitted that for the purposes of the rule that costs follow the event, the “event” needs to be carefully examined where there are multiple issues. So much may be accepted. His clients having succeeded in relation to Order 1 meant, in his submission, that there had been mixed outcomes justifying an order that each party should pay their own costs.

6. Furthermore, the submissions speculated (and they could be no more than speculation) that had Archie acceded to Nat and Sean’s request in December 2021 (shortly before the proceedings were commenced) for the share in SLT to be transferred to Sean, it was likely that the proceedings would never have been commenced. The suggestion was that but for Archie’s “wrongful” retention of the share, the parties would not have incurred the costs of the subsequent litigation.

7. Mr Young’s submission (which the Court accepts) was that Nat and Sean’s approach to the question of costs bears, with respect, no resemblance to how the case was in fact run. There was no reason to disturb the Court’s costs order in Order 4 because Nat and Sean had failed on the two disputed issues that had occupied nearly all of the hearing.

8. There are four further reasons why the Court accepts Mr Young’s submissions.

9. First, the difficulty in Mr Rogers’ submissions can be identified in their opening characterisation of the proceedings:

“2.1 On the face of the orders and without knowledge of the background the Plaintiffs would appear to have had success in the proceedings.

2.2 It can be conceded, however, that much of the case at trial turned on those parts of the pleading which were dismissed.”

10. In fact, after discounting what I referred to in the principal judgment at [2] as “procedural, factual and legal distractions”, the whole of the case at trial turned on those parts of the pleading which were dismissed.

11. Second, the same point applies to Mr Rogers’ reliance on the costs principles which may apply where there has been mixed success on multiple issues. The way the case was run, there were only two substantive issues and Nat and Sean failed on both of them. The outcome cannot be correctly described as one of mixed success on multiple issues.

12. Third, and again because it was not an actually litigated issue, the Court made no findings in the principal judgment concerning the propriety or otherwise of Archie’s failure to transfer the share to Nat and Sean when he was asked to do so.

13. Furthermore, as I have already noted, the suggestion that the proceedings may not have run if the share had been transferred is complete speculation. The evidence is silent on the question. Nor can it be said that the proposition is self-evident given that, as advanced at the start of the hearing, Nat and Sean claimed more than $400,000 in damages, which after concessions was recast to a claim of approximately $120,000 in final submissions.

14. Fourth, while the order for the transfer of the share was pressed in final written submissions, it occupied no time at the hearing. In practical terms, it arose as a result of a question from the Brench at the conclusion of the evidence. The relevant exchange, which is the sum total of the Court’s attention to the question of the transfer of the share, takes up approximately one page of transcript, captured in this exchange:

“HIS HONOUR: Yes, all right. Are we ready to have some submissions? Mr Rogers, let’s just start with some very basic things to help me orient myself. Does your client still press for relief in relation to shares in the liquidated company?

ROGERS: Yes. We seek the shares transfer.

HIS HONOUR: All right. Do you oppose the shares being transferred in a company that is now in liquidation?

YOUNG: Well, I don’t oppose that, your Honour.” (Tcpt, 27 August 2025, p 354(30–40))

15. In summary, the transfer of the share was the subject of only fleeting attention at the hearing. The case presented on behalf of Nat and Sean was devoted to a claim for substantial damages. That claim failed entirely. There is no reason why costs should not follow the event.

16. Nat and Sean’s application to vary Order 4 is rejected. The order is confirmed. For the avoidance of doubt, the Court will vary it by the addition of the following words:

“(including, for the avoidance of doubt, the first defendant’s costs of the argument on the papers as to the costs of the proceedings).”

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