McColl JA at [1], Basten JA at [72], Ward JA at [97]
Decision:
(1) Grant leave to appeal.
(2) Appellant to file the notice of appeal in the form of the draft appearing at tab 4 of the White Book within 14 days.
(3) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PRACTICE - joinder of parties - where appellant sole director of holding and subsidiary company - where appellant in his capacity as director purported to cause subsidiary to declare dividend in favour of holding company - where subsidiary and holding company went into administration - where appellant removed aircraft from company premises asserting entitlement to do so on basis aircraft had been transferred to holding company as in specie payment of dividend - where administrator alleged transfer of aircraft to be invalid and disputed holding company's title to aircraft - where appellant and holding company both joined as defendants to proceedings commenced by administrator seeking return of aircraft and declaration they were subsidiary's property - whether appellant a proper party to the proceedings in circumstances where he asserted he was acting in his capacity as director of the defendant company at all relevant times
COSTS - indemnity costs - exercise of discretion to award costs - where appellant initially conveyed the impression he was defending proceedings brought against him - where appellant later served submitting appearance shortly before scheduled hearing date - where primary judge concluded the appellant properly advised should have known defence had "no chance of success" - where primary judge awarded indemnity costs against appellant - whether appellate court should interfere with order for indemnity costs
[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
AGLC
Seller v Jones [2014] NSWCA 19
Case
[2014] NSWCA 19
Decision Date
CaseChat Overview and Summary
The appeal concerned the joinder of the appellant, the sole director of both a holding company and a subsidiary company, as a defendant in proceedings commenced by the administrator of the subsidiary. The administrator sought the return of an aircraft, alleging its transfer to the holding company as an in specie dividend was invalid, and disputed the holding company's title. The appellant asserted he acted throughout in his capacity as director of the subsidiary.
The primary legal issues before the court were whether the appellant was a proper party to the proceedings, given his assertion of acting solely in his directorial capacity, and whether the primary judge erred in exercising discretion to award indemnity costs against him. The appellant had initially appeared to defend the proceedings but later submitted shortly before the hearing, leading the primary judge to conclude his defence had no prospect of success.
The appellate court considered the appellant's role and actions in relation to the aircraft transfer. It found that the appellant's assertion of acting solely as a director did not preclude him from being a proper party, particularly as his conduct was central to the dispute over the aircraft's title. Regarding costs, the court upheld the primary judge's decision to award indemnity costs, finding that the appellant, properly advised, should have recognised the lack of merit in his defence, justifying the exercise of discretion.
Leave to appeal was granted, but the appeal was ultimately dismissed with costs. The appellant was ordered to file a notice of appeal in a specified form within 14 days.
Orders
Orders of the court
(1) Grant leave to appeal.
(2) Appellant to file the notice of appeal in the form of the draft appearing at tab 4 of the White Book within 14 days.
(3) Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]