May v Christodoulou

The appeal concerned a non-party costs order made against Mr May, the director of Belltree Constructions Pty Ltd, who represented the company at trial. The plaintiff, Christodoulou, had succeeded in the District Court proceedings against Belltree Constructions. Mr May sought to appeal the order that he be jointly and severally liable with the company for the respondent's costs.

The primary legal issues before the Court of Appeal were whether the primary judge erred in making the non-party costs order against Mr May, and whether the refusal of an application to transfer the proceedings under section 48L of the *Home Building Act 1989* (NSW) deprived the court of jurisdiction or constituted a waiver of the right to apply for such a transfer.

The Court of Appeal allowed the appeal, setting aside the non-party costs order. The court reasoned that the criteria for making a non-party costs order against a director representing a company had not been met. Furthermore, the refusal of the transfer application, made late in the hearing, did not deprive the court of jurisdiction, nor was the right to apply for a transfer waived by its late making. The respondent was ordered to pay the appellant's costs of the appeal and was granted a certificate under the *Suitors Fund Act 1951* (NSW), if qualified.