Italian and Continental Bakery v Ehrensperger Nominees

[2005] ACTSC 22

ITALIAN & CONTINENTAL BAKERY v EHRENSPERGER NOMINEES
[2005] ACTSC 22 (14 MARCH 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 67 of 2004

Judge:          Higgins CJ
Supreme Court of the ACT

Date:   14 March 2005

IN THE SUPREME COURT OF THE     )
  )          No. SCA 67 of 2004
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:ITALIAN & CONTINENTAL BAKERY

Appellant

AND:EHRENSPERGER NOMINEES

Respondent

ORDER

Judge:  Higgins CJ
Date:  14 March 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. As from today, the administration be terminated.

1. The administrator has leave to submit any accounts for payment by the body corporate that the administrator would have been entitled to submit otherwise.

1. The respondent pay the appellant’s costs of the appeal.

1. The respondent pay the appellant’s costs of the proceedings in the Magistrates Court which will be at two-thirds of the Supreme Court scale.

1. I thank both counsel for their assistance in this matter.  It seems to me, that the position which has been arrived at is as follows (and I won’t detail the factual history of the matter here as it is detailed in the Appeal Book and in submissions). The fundamental question is this. There has been an appointment of an administrator by Magistrate Madden. I agree with Mr Erskine that it was a decision that was open to the magistrate, on the material before him.  That is not to say I would have made the same decision, but it was certainly open to his Worship to have done so. 

1. However, that does not end the matter because this, as has been pointed out, is an appeal by way of re-hearing.  In my opinion, in the absence of any apparent dispute between the parties, and in the presence of a proposal to have the personal representatives of each of the two parties, such that both of the two previous representatives will not be needed (ie Mr Enders will represent one of them), it seems to me that there is a changed situation which is well worth trying. 

1. I do not really believe that a body corporate needs this sort of management when it is a two-person corporation, and is merely there to comply with the provisions of the Unit Titles Act 2001.  It is, or ought to be ordinarily, a fairly formal affair. 

1. I appreciate that the problem in the past was the redevelopment proposal, which was a substantial matter, and was resolved in due course by a deadlock order.  That is not likely to arise in the future, that is to say a similar proposition causing some similar disputation. The only likely disputations that I can see would be about whether a manager needs to be appointed, and if so who, and maybe or maybe not about the insurance, although that seems to have also been resolved by the administrator to date.  So I cannot see how the expense of an administrator is justified into the future. 

1. However, as I have said, his Worship did not act invalidly in appointing the administrator, which appointment is currently ongoing.  So I would propose to uphold the appeal and put in place an order that the administration cease at a particular point in time.

1. Without canvassing all of the possibilities, it seems to me I ought to make the order which is sought, that as from today, the administration be terminated, the administrator having leave to submit any accounts for payment by the body corporate, that the administrator would have been entitled to submit otherwise. 

1. The ordinary rule as to costs is that of costs following the event, even if that event is arrived at merely on the basis of a disagreement as to a factual finding.  However, in this case, the issue was not merely as to a factual finding, but also the weighing of various factual elements in the course of the making of a decision. 

1. It seems to me that there is no reason to depart from the usual rule, and I make the usual order, which is that the respondent pay the appellant’s costs, not only of the appeal, but also of proceedings in the Magistrates Court. The latter will be on the scale usually applicable to proceedings in that court, namely, at two-thirds of the Supreme Court scale. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:  6  April 2005

Counsel for the appellant:  Mr J Pappas
Solicitor for the appellant:  Meyer Clapham
Counsel for the respondent:  Mr C Erskine

Solicitor for the respondent:  Snedden Hall & Gallop

Date of hearing:  14 March 2005
Date of judgment:  14 March 2005