De Vries & Anor v Rapid Metal Developments (Australia) Pty Ltd [2011] NSWCA 100

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: De Vries & Anor v Rapid Metal Developments (Australia) Pty Ltd [2011] NSWCA 100 Hearing dates: 15 March 2011 Decision date: 28 April 2011 Before: Hodgson JA at 1, Macfarlan JA at 2, Sackville AJA at 3 Decision: 1. Appeal allowed. 2. Set aside the orders made by RA Hulme J on 10 February 2010 and on 9 March 2010. 3. In lieu of the orders set aside, order that: (a) the proceedings be dismissed; (b) the Respondent pay the Appellants' costs of the proceedings, other than any costs incurred by them as the result of the adjournment of the proceedings on 3 March 2008; and (c) the Appellants pay the Respondent's costs thrown away as a result of the adjournment of the proceedings on 3 March 2008, on an indemnity basis. 4. The Respondent pay the Appellants' costs of the appeal. 5. Direct that the Respondent, if otherwise qualified, have a certificate under the Suitors Fund Act 1951 (NSW). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CORPORATIONS - mortgagee in possession - corporation in business of hiring scaffolding - whether agents of mortgagee ("Controllers") liable under s 419A(2) of the Corporations Act for rent due to third party for scaffolding in possession of corporation - whether third party proved that its scaffolding was in the possession of the corporation at the date of Controllers' appointment - whether the language of s 419A(2) of the Corporations Act extends to the corporation's liability to make payments at the end of a period of hire - whether the primary Judge was correct not to excuse the Controllers from liability pursuant to s 419A(7) of the Corporations Act.