ZAPPIA v GRANT BAINES TRANSPORT PTY LIMITED [2010] NSWSC 98

ZAPPIA v GRANT BAINES TRANSPORT PTY LIMITED [2010] NSWSC 98

The liquidator's 7 September 2006 letter, read as a whole, gave written consent to GBT bringing proceedings under s.588M. Although the original statement of claim was filed before liquidation and before consent could be given, proceedings were on foot and s.64 of the Civil Procedure Act 2005 permitted amendment to add or substitute the viable s.588M cause of action after consent; by s.64(3), that cause of action was taken to commence on 8 September 2006. The Magistrate's findings on insolvency and treatment of the evidence disclosed no error of law, and the challenged costs orders were within discretion. The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
23 February 2010
Procedural Posture
Appeal Under Ss.39 and 40 of the Local Court Act 2007 From Judgments of the Newcastle Local Court in Proceedings Under S.588 M of the Corporations Act 2001 (cth) / Supreme Court Appeal Dismissed
Outcome
Appeal dismissed; plaintiff ordered to pay the defendant's costs, subject to liberty to apply on costs.
Legal Topics
['insolvent Trading Compensation Under S.588 M of the Corporations Act 2001 (cth)' "liquidator's Written Consent Under S.588 R of the Corporations Act 2001 (cth)" 'amendment of Originating Process Under S.64 of the Civil Procedure Act 2005' 'appeals From the Local Court on Questions of Law' 'presumption and Proof of Insolvency' 'indemnity Costs']
['corporations' 'civil Procedure' 'appeals' 'costs'] ['insolvent Trading Compensation Under S.588 M of the Corporations Act 2001 (cth)' "liquidator's Written Consent Under S.588 R of the Corporations Act 2001 (cth)" 'amendment of Originating Process Under S.64 of the Civil Procedure Act 2005' 'appeals From the Local Court on Questions of Law' 'presumption and Proof of Insolvency' 'indemnity Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Under Ss.39 and 40 of the Local Court Act 2007 From Judgments of the Newcastle Local Court in Proceedings Under S.588 M of the Corporations Act 2001 (cth) / Supreme Court Appeal Dismissed

Legal Issues

  1. 1 ["Whether the liquidator's letter of 7 September 2006 constituted written consent for GBT to bring proceedings under s.588M of the Corporations Act 2001 (Cth)." 'Whether proceedings initially commenced before liquidation and before liquidator consent could be validly maintained by filing an amended statement of claim after written consent was given.' 'Whether the Local Court made an error of law in finding insolvency or applying the presumption of insolvency.' 'Whether the Local Court was required to accept unchallenged evidence from Mr Zappia or his expert because they were not cross-examined.' 'Whether leave should be granted or error shown in respect of the Local Court costs orders, including indemnity costs and costs of the Tolcher report.']

Ratio Decidendi

The liquidator's 7 September 2006 letter, read as a whole, gave written consent to GBT bringing proceedings under s.588M. Although the original statement of claim was filed before liquidation and before consent could be given, proceedings were on foot and s.64 of the Civil Procedure Act 2005 permitted amendment to add or substitute the viable s.588M cause of action after consent; by s.64(3), that cause of action was taken to commence on 8 September 2006. The Magistrate's findings on insolvency and treatment of the evidence disclosed no error of law, and the challenged costs orders were within discretion. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed; plaintiff ordered to pay the defendant's costs, subject to liberty to apply on costs.

Orders

  • ['The proceedings by way of appeal under the Local Court Act 2007 are dismissed.' "Pursuant to Part 42 Rule 42.1 UCPR 2005 and subject to order (3), the plaintiff is to pay the defendant's costs of the proceedings." 'In the event that either party seeks to raise any matter concerning costs, liberty is granted in...