Scharer v Giro Construction Group Pty Ltd (in Liq) (Receiver and Manager Appointed) [2017] NSWSC 1568

Supreme Court New South Wales

Medium Neutral Citation: Scharer v Giro Construction Group Pty Ltd (in Liq) (Receiver and Manager Appointed) [2017] NSWSC 1568 Hearing dates: 29 September 2017 Date of orders: 17 November 2017 Decision date: 17 November 2017 Jurisdiction: Common Law Before: Walton J Decision: The Court orders:

(1) The applicants are granted leave to appeal from the whole of the decision of the Appeal Panel of the Tribunal on 26 June 2017 in proceedings AP 16/44447.

(2) The orders made by the Appeal Panel on 26 June 2017 are set aside.

(3) In place of those orders, the proceedings HB 14/495581 in the Tribunal are dismissed with no order as to costs.

(4) There is no order as to costs of these proceedings. Catchwords: APPEAL – civil – appeal from the NSW Civil and Administrative Appeal Panel – Appointment of Administrator – subsequent voluntary liquidation – whether Appeal Panel omitted to deal with issue of Tribunal's lack of jurisdiction per s 500 – whether the Appeal Panel erred in law in concluding that it was not necessary to determine whether s 440D of the Corporations Act applied to proceedings in the Tribunal – whether the Appeal Panel erred in law in concluding the consent provided by the Administrator was valid for the purposes of s 440D – whether the Appeal Panel erred in law refusing otherwise to grant leave to appeal from a costs order made in circumstances where the Senor Member was proceeding under a material error of fact – Appeal Panel erred in law in failing to deal with "jurisdiction question" raised regarding s 500 – in effect, the Appeal Panel erroneously found the Tribunal had jurisdiction – failure to determine application of s 440D – limited or qualified consent given by the Administrator in Tribunal proceedings invalid for the purposes of s 440D – leave to appeal granted Legislation Cited: Corporations Act 2001 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Arogen v Leighton (2013) 278 FLR 245; [2013] NSWSC 1099 Brash Holdings Ltd (Administration Appointed) v Katile Pty Ltd [1996] 1 VR 24 at 28-29 Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2017] NSWSC 1322 In the matter of Oliver Brown Pty Ltd [2012] NSWSC 1046 Mead Corp v Carbonless Papers (Australia) Pty Ltd [2002] WASC 268 Scharer v Giro Construction Group Pty Ltd (in Liq) [2017] NSWCATAP 140 Category: Principal judgment Parties: Wayne Scharer and Judith Anderson (Applicants) Giro Construction Group Pty Ltd (Respondent) Representation: Counsel: M R Pesman SC (Applicants)