Dos Santos v Jada Group Pty Ltd

[2022] NSWCATCD 154

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Dos Santos v Jada Group Pty Ltd [2022] NSWCATCD 154

Hearing dates:

13 October 2021, 16 February 2022

Date of orders:

11 August 2022

Decision date:

11 August 2022

Jurisdiction:

Consumer and Commercial Division

Before:

H Woods, Senior Member

Decision:

(1) The Tribunal notes that the Applicant withdraws the Application as the Respondent has gone into liquidation.

(2) Without determining the matter on its merits, the Application is dismissed pursuant to s 51(1) (a) Civil and Administrative Tribunal Act 2013 No 2 (NSW)

Catchwords:

CORPORATIONS — Winding up — Proceedings against company — Stay of proceedings – Leave of Court

CORPORATIONS — Voluntary administration — Legal proceedings — Moratorium on legal proceedings against company under administration

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Corporations Act 2001 (Cth)

Cases Cited:

Lianos v Order of AHEPA NSW Inc (No2) [2020] NSWCA 304 at [23]

Category:

Principal judgment

Parties:

Veselinka Dos Santos (Applicant)
Jada Group Pty Ltd (Respondent)

Representation:

Meliora Legal Services (Applicant)

Mr Bechara (Director) (Respondent)

File Number(s):

HB 20/38250

Publication restriction:

Nil

REASONS FOR DECISION

1. The proceedings concerned residential building work performed by the Respondent builder (the Builder) for the Applicant homeowner (the Owner) at 21 Yengo Street North Kellyville, NSW (the Property) pursuant to a Master Builders Association Lump sum contract for new houses Home Building Contract for $540,000.00 signed on 21 April 2017 (the Contract).

2. The matter was heard on 13 October 2021 and 16 February 2022.

3. At the conclusion of the hearing on 16 February 2022, the Tribunal ordered that the Owner file and serve written submissions by 9 March 2022, that the Builder file and serve written submissions by 23 March 2022 and that the Owner file and serve any reply submissions by 30 March 2022. The Tribunal also noted that the parties would obtain a copy of the sound recording and share the cost of transcription equally.

4. On 29 April 2022, the Tribunal received an email from the solicitor for the Applicant stating that the Respondent has gone into liquidation, attaching a current company extract for the respondent dated 28/04/2022 and seeking the Tribunal's guidance on how to proceed.

5. The company extract noted that the Builder is under external administration and/or controller appointed and that Trent McMillen and Ernie Chou of Mac Insolvency Level 7, 91 Phillip Street Parramatta were appointed Liquidators (Creditors Voluntary Winding Up) on 23 March 2022.

6. At that time, no submissions had been filed by either party.

7. Section 500(2) Corporations Act 2001 (Cth) provides:

(2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.

8. To similar effect, s 440 (D) Corporations Act provides:

1. During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or

1. with the administrator's written consent; or

2. with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

9. On 3 May 2022, the Tribunal made the following directions:

(6) The Tribunal directs the applicant to inform the Tribunal within 28 days whether it has or intends to seek the leave of the Court to proceed against the applicant or whether it withdraws the application.

(7) If the applicant does not intend to seek the leave of the Court or has not informed the Tribunal within 28 days that it has or intends to seek the Court's leave to proceed with the Proceedings or if the applicant withdraws the application, the application will be dismissed.

10. On 4 May the solicitors for the owner emailed a letter to the Tribunal stating:

We are now seeking leave of the Tribunal to proceed against the Respondent. The Respondent is clearly being disadvantageous, as the proceedings have been on foot for several months and the Respondent has gone into administration after the Hearing of this matter.

We therefore submit the Tribunal can determine the proceeding in favour of the Applicant and make orders set out in the Written Submissions provided by the Applicant; in accordance with Schedule 4, Clause 10(2) of the NSW Civil and Administrative Tribunal Act 2012.

11. The email also attached 13 pages of written submissions in respect of the substantive dispute.

12. Clause 10 (2) of Schedule 4, Civil and Administrative Tribunal Act 2013 No2 (NSW) (CAT Act), being the clause referred to in the Owner’s solicitor’s letter emailed on 4 May, provides:

(2) The Tribunal may—

(a) if the party causing the disadvantage is the applicant—order that the proceedings (or part of the proceedings) be dismissed or struck out, or

(b) if the party causing the disadvantage is not the applicant—

(i) determine the proceedings (or part of the proceedings) in favour of the applicant and make any appropriate orders, or

(ii) order that the party causing the disadvantage be struck out of the proceedings (or part of the proceedings).

13. The Tribunal is not within the meaning of “the Court” as defined in s 58AA Corporations Act and clause 10 (2) of Schedule 4 CAT Act does not give the Tribunal the power to grant leave to a party to proceed against a party in liquidation where leave has not been granted by the Court as defined in s 58AA Corporations Act.

14. The Tribunal also notes that the submissions which the Tribunal had directed be filed, had not been filed at the at the time a liquidator was appointed, and the making of submissions involves a step towards the final resolution of proceedings and requires that leave be granted. Lianos v Order of AHEPA NSW Inc (No2) [2020] NSWCA 304 at [23].

15. On 10 August 2022, the Applicant’s solicitors emailed the Tribunal stating:

We are writing to confirm these proceedings can be withdrawn as the respondent has gone into liquidation.

We are not seeking leave of the supreme court to continue the action against the respondent.

16. In the circumstances, the Tribunals notations and orders will be:

1. The Tribunal notes that the Applicant withdraws the Application as the Respondent has gone into liquidation; and

2. Without determining the matter on its merits, the Application is dismissed pursuant to s 51(1) (a) Civil and Administrative Tribunal Act 2013 No 2 (NSW).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

21 September 2023 - Formatting amendments.