Hosking v Extend N Build Pty Ltd (No 2) - [2020] NSWCA 107

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hosking v Extend N Build Pty Ltd (No 2) [2020] NSWCA 107
Hearing dates: On the papers
Date of orders: 09 June 2020
Decision date: 09 June 2020
Before: Bathurst CJ; Bell P; Gleeson JA
Decision:
Judgment for the third appellant against the sixth respondent in the amount of $91,978.00.

Catchwords: JUDGMENTS AND ORDERS – Court of Appeal – practice and procedure – constitution of court – where parties failed to provide short minutes of order to give effect to appeal judgment – where one member of original Court of Appeal bench no longer a member of the Court – whether appropriate to reconstitute new bench – appropriate form of order in relation to unfair preference – Corporations Act 2001 (Cth), 588FF(1)(a)
Legislation Cited: Corporations Act 2001 (Cth), s 588
Supreme Court Act 1970 (NSW), s 45AA(1)
Cases Cited: Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390
Cotogno v Lamb (1985) 3 NSWLR 221
Gordon v Tolcher (2006) 231 CLR 334; [2006] HCA 62
Re BBY Limited (receivers & managers apt) (in liq) [2019] NSWSC 1271
SJP Formwork (Aust) Pty Ltd (in liq) v Deputy Commissioner of Taxation [2000] NSWSC 604; (2000) 34 ACSR 604
Woodgate v Fawcett [2008] NSWSC 868; (2008) 67 ACSR 611
Category: Consequential orders (other than Costs)
Parties: Hosking, in his capacity as joint and several liquidator of Evolvebuilt Contracting Pty Ltd (in liq) (First Appellant)
Hurst, in his capacity as joint and several liquidator of Evolvebuilt Contracting Pty Ltd (in liq) (Second Appellant)
Evolvebuilt Contracting Pty Ltd (in liq) (Third Appellant)
Extend N Build Pty Ltd (First Respondent)
Build Projects Pty Ltd (Second Respondent)
Consek Pty Ltd (Third Respondent)
Thehai Trinh (Fourth Respondent)
Truthful Constructions Pty Ltd (Fifth Respondent)
Kennico Interiors Pty Ltd (Sixth Respondent)
Representation:
Counsel:
M Pesman SC / C Alexander (Appellants)
A G Martin (First, Second, Third, Fifth, Sixth Respondents)
J Cohen (Fourth Respondent)
Solicitors:
CCSG Lawyers (Appellants)
Paul Bard Lawyers (First, Second, Third, Fifth, Sixth Respondents)
Ledinh Lawyers (Fourth Respondent)

File Number(s): 2017/234980
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2017] NSWSC 901

Date of Decision:

4 July 2017

Before:

Brereton J

File Number(s):

2016/277475

Judgment

THE COURT: On 13 July 2018, the Court (Bathurst CJ, Beazley P and Gleeson JA) made the following orders in relation to an appeal brought by the first and second appellants as liquidators of the third appellant, Evolvebuilt Contracting Pty Ltd (Evolvebuilt) against, relevantly, the sixth respondent, Kennico Interiors Pty Ltd (Kennico) (the 2018 appeal judgment):

(2)   In relation to the sixth respondent:
(a)   Allow the appeal.
(b)   Set aside the orders made by the primary judge dismissing the appellants’ claim against the sixth respondent.
(c)   Direct the appellants and the sixth respondent to bring in short minutes of order to give effect to this judgment within 7 days.
(d)   Order the sixth respondent to pay the appellants’ costs of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCA 107
Decision Date: 09 June 2020

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application concerning the form of orders to give effect to a prior appeal judgment. The dispute arose between the appellants, including the third appellant, and the respondents, including the sixth respondent, following an earlier appeal decision. The central issue was how to implement the appeal judgment when the parties had not provided short minutes of order, and one member of the original appellate bench was no longer a member of the Court.

The court was required to determine whether it was appropriate to reconstitute a new bench to settle the orders, given the absence of one of the original judges. Furthermore, the court had to consider the appropriate form of order in relation to an unfair preference claim, specifically in the context of section 588FF(1)(a) of the *Corporations Act 2001* (Cth).

The court reasoned that reconstituting a new bench was the appropriate course of action to settle the orders, as the original bench was no longer constituted. The court then proceeded to make orders giving effect to the prior appeal judgment. The third appellant was awarded judgment against the sixth respondent in the sum of $91,978.00.

Orders

Orders of the court

Judgment for the third appellant against the sixth respondent in the amount of $91,978.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hosking v Extend N Build Pty Ltd (No 2) [2020] NSWCA 107
Hearing dates:	On the papers
Date of orders:	09 June 2020
Decision date:	09 June 2020
Before:	Bathurst CJ; Bell P; Gleeson JA
Decision:	Judgment for the third appellant against the sixth respondent in the amount of $91,978.00.
Catchwords:	JUDGMENTS AND ORDERS – Court of Appeal – practice and procedure – constitution of court – where parties failed to provide short minutes of order to give effect to appeal judgment – where one member of original Court of Appeal bench no longer a member of the Court – whether appropriate to reconstitute new bench – appropriate form of order in relation to unfair preference – Corporations Act 2001 (Cth), 588FF(1)(a)
Legislation Cited:	Corporations Act 2001 (Cth), s 588 Supreme Court Act 1970 (NSW), s 45AA(1)
Cases Cited:	Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390 Cotogno v Lamb (1985) 3 NSWLR 221 Gordon v Tolcher (2006) 231 CLR 334; [2006] HCA 62 Re BBY Limited (receivers & managers apt) (in liq) [2019] NSWSC 1271 SJP Formwork (Aust) Pty Ltd (in liq) v Deputy Commissioner of Taxation [2000] NSWSC 604; (2000) 34 ACSR 604 Woodgate v Fawcett [2008] NSWSC 868; (2008) 67 ACSR 611
Category:	Consequential orders (other than Costs)
Parties:	Hosking, in his capacity as joint and several liquidator of Evolvebuilt Contracting Pty Ltd (in liq) (First Appellant) Hurst, in his capacity as joint and several liquidator of Evolvebuilt Contracting Pty Ltd (in liq) (Second Appellant) Evolvebuilt Contracting Pty Ltd (in liq) (Third Appellant) Extend N Build Pty Ltd (First Respondent) Build Projects Pty Ltd (Second Respondent) Consek Pty Ltd (Third Respondent) Thehai Trinh (Fourth Respondent) Truthful Constructions Pty Ltd (Fifth Respondent) Kennico Interiors Pty Ltd (Sixth Respondent)
Representation:	Counsel: M Pesman SC / C Alexander (Appellants) A G Martin (First, Second, Third, Fifth, Sixth Respondents) J Cohen (Fourth Respondent) Solicitors: CCSG Lawyers (Appellants) Paul Bard Lawyers (First, Second, Third, Fifth, Sixth Respondents) Ledinh Lawyers (Fourth Respondent)
File Number(s):	2017/234980
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2017] NSWSC 901 Date of Decision: 4 July 2017 Before: Brereton J File Number(s): 2016/277475