Scharer v Giro Construction Group Pty Ltd (In Liq) [2017] NSWCATAP 140

Scharer v Giro Construction Group Pty Ltd (In Liq) [2017] NSWCATAP 140

The appeal and application for leave to appeal were dismissed because the only live issue was costs, the dismissal below having been made by consent and accepted on appeal. The Tribunal below committed no discernible error of principle in ordering costs in favour of the Respondent as the successful party under r 38. Assuming without deciding that s 440D of the Corporations Act (Cth) applied, the administrator's written consent covered the delivery of the preliminary decision and the Respondent's costs application; there was no application by the Applicants for costs, and the consent did not prevent them from submitting that there should be no order as to costs.

Jurisdiction
Australia
Judgment Date
26 June 2017
Procedural Posture
Appeal and Application for Leave to Appeal / Appeal Panel Decision From New South Wales Civil and Administrative Tribunal, Consumer and Commercial Division
Outcome
Appeal and application for leave to appeal dismissed. No order as to costs of the appeal.
Legal Topics
['appeal From NCAT Consumer and Commercial Division' 'costs After Dismissal by Consent' 'external Administration and S 440 D Consent' 'standing to Bring Home Building Proceedings' 'leave to Appeal From Costs Decision']
['civil Procedure' 'costs' 'corporations' 'home Building'] ['appeal From NCAT Consumer and Commercial Division' 'costs After Dismissal by Consent' 'external Administration and S 440 D Consent' 'standing to Bring Home Building Proceedings' 'leave to Appeal From Costs Decision']

Case Brief

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Procedural Posture

Appeal and Application for Leave to Appeal / Appeal Panel Decision From New South Wales Civil and Administrative Tribunal, Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether the costs order made against the Applicants should be disturbed on appeal or by grant of leave to appeal.' 'Whether the Tribunal below had jurisdiction to make a costs order in favour of a respondent in liquidation or administration having regard to s 440D of the Corporations Act (Cth).' "Whether the administrator's written consent was impermissibly piecemeal in relation to costs." 'Whether it was necessary to decide whether the Tribunal was a "court" within the meaning of s 440D of the Corporations Act (Cth).']

Ratio Decidendi

The appeal and application for leave to appeal were dismissed because the only live issue was costs, the dismissal below having been made by consent and accepted on appeal. The Tribunal below committed no discernible error of principle in ordering costs in favour of the Respondent as the successful party under r 38. Assuming without deciding that s 440D of the Corporations Act (Cth) applied, the administrator's written consent covered the delivery of the preliminary decision and the Respondent's costs application; there was no application by the Applicants for costs, and the consent did not prevent them from submitting that there should be no order as to costs.

Court Disposition

Appeal and application for leave to appeal dismissed. No order as to costs of the appeal.

Orders

  • ['Appeal and application for leave to appeal dismissed.' 'No order as to costs of the appeal.']