Joubert v Campbell Street Theatre Pty Ltd (In Liquidation)

The appeal concerned an application by the liquidator of Campbell Street Theatre Pty Ltd (in liquidation) to set aside an order made by the Equity Division of the Supreme Court of New South Wales. The order directed the liquidator to pay the costs of certain proceedings personally and on an indemnity basis. The liquidator argued that the original order was made without procedural fairness, as he was not given an opportunity to be heard before the order was made.

The Court of Appeal was required to determine whether the Equity Division had erred in making the costs order against the liquidator personally without affording him procedural fairness. Specifically, the court had to consider whether the liquidator had a right to be heard before such an order was made, and if not, whether the circumstances warranted a remittal of the decision.

The Court of Appeal found that the liquidator had been denied procedural fairness. The court held that a liquidator, when faced with an application for a personal costs order, has a right to be heard and to present submissions regarding the application. The fact that the original matter was dealt with on the papers did not negate this right. Consequently, the Court of Appeal allowed the appeal, set aside the original costs order, and remitted the matter to the Equity Division for redetermination. The costs of the appeal were ordered to abide the result of the remitted proceedings.