Da Silva and Da Silva Constructions Pty Ltd v Bresond Pty Ltd & Anor [2008] NSWSC 158

Da Silva and Da Silva Constructions Pty Ltd v Bresond Pty Ltd & Anor [2008] NSWSC 158

The Consumer Trader & Tenancy Tribunal is not a 'court' under s 1335 of the Corporations Act 2001 (Cth) because it lacks the essential constitutional features of a court, such as the tenure and composition required. Neither the statutory scheme of the Consumer Trader and Tenancy Tribunal Act 2001 nor the Tribunal's general procedural powers confer on it jurisdiction to order security for costs against a corporate plaintiff.

Parties
Plaintiff: Da Silva and Da Silva Constructions Pty Ltd; Defendant: Bresond Pty Ltd; Defendant: Consumer Trader & Tenancy Tribunal
Jurisdiction
Australia
Judgment Date
29 February 2008
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed. Declaration made that the Tribunal does not have jurisdiction to order security for costs against the corporate plaintiff.
Legal Topics
Tribunal Jurisdiction, Security for Costs, Court Definition Under Corporations Act
Administrative Law Corporate Law Building and Construction Law Tribunal Jurisdiction Security for Costs Court Definition Under Corporations Act

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Parties

Da Silva and Da Silva Constructions Pty Ltd

Plaintiff

Bresond Pty Ltd

Defendant

Consumer Trader & Tenancy Tribunal

Defendant

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the Consumer Trader & Tenancy Tribunal is a 'court' under s 1335 of the Corporations Act 2001 (Cth) and thus able to order security for costs against a corporate plaintiff
  2. 2 Whether the Consumer Trader & Tenancy Tribunal has an alternative source of power to order security for costs

Ratio Decidendi

The Consumer Trader & Tenancy Tribunal is not a 'court' under s 1335 of the Corporations Act 2001 (Cth) because it lacks the essential constitutional features of a court, such as the tenure and composition required. Neither the statutory scheme of the Consumer Trader and Tenancy Tribunal Act 2001 nor the Tribunal's general procedural powers confer on it jurisdiction to order security for costs against a corporate plaintiff.

Court Disposition

Appeal allowed. Declaration made that the Tribunal does not have jurisdiction to order security for costs against the corporate plaintiff.

Orders

  • Declare that the Tribunal does not have jurisdiction to make an order that the corporate plaintiff provide security for the costs of Bresond Pty Ltd of the claim of the corporate plaintiff.
  • Remit the decision on the question of law to the Tribunal for further hearing and directions.