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

New South Wales Supreme Court

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

HEARING DATE(S) : Monday 15 February 2010

JUDGMENT DATE : 23 February 2010

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

(1) The proceedings by way of appeal under the Local Court Act 2007 are dismissed. DECISION : (2) Pursuant to Part 42 Rule 42.1 UCPR 2005 and subject to (3) below, the plaintiff is to pay the defendant's costs of the proceedings. (3) In the event that either party seeks to raise any matter concerning costs, I grant liberty in that respect to apply.

CATCHWORDS : APPEAL – Local Court Act 2007, s.39 – question of law – CORPORATIONS – proceedings by creditor of insolvent company for recovery fro director under s.588M(3), Corporations Act 2001 – requirement under s.588R of that Act for written consent of liquidator to begin such proceedings – proceedings commenced before liquidation – subsequently amended statement of claim filed the day following receipt of written consent from liquidator – whether proceedings validly commenced by the amended statement of claim – whether "consent" given – or statement of "no objection" a "consent" – PRACTICE AND PROCEDURE – s.65, Civil Procedure Act 2005 – power to amend documents – whether power under s.64 available to "commence" proceedings under s.588M when proceedings on the original statement of claim were defective – held power under s.64 to amend was available and could validate such proceedings consistently with the purpose and object of the federal provisions (s.588M) – the proceedings were valid under the amended statement of claim

Civil Procedure Act 2005 Corporations Act 2001 (Cth) LEGISLATION CITED : Evidence Act 1995 Local Court Act 2007 Supreme Court Rules 1970