X Pty Ltd (Administrator Appointed) and Milstead & Anor

The appellant, X Pty Ltd, challenged the property settlement orders made by the primary judge, which affected both the appellant and the first respondent. The second respondent was also a party to the proceedings. The case was heard in the Federal Circuit Court of Australia. The appellant argued that the primary judge had erred in making orders that allegedly contravened sections 440D, 556, and 437D(2) of the Corporations Act 2001 (Cth), and that the court lacked jurisdiction to make the orders under Part 5.3A of the Corporations Act 2001 (Cth). The court was required to determine whether the court making the orders was "proceeding with" a proceeding such that section 440D(1) of the Corporations Act 2001 (Cth) applied.

The court found that the appellant's argument about the applicability of section 440D(1) of the Corporations Act 2001 (Cth) had merit. The court concluded that the court making the orders was indeed "proceeding with" a proceeding, and therefore section 440D(1) applied. The court did not find it necessary to address the other grounds of appeal. The appeal was allowed, and the orders made on 21 February 2014 were set aside. The proceedings were remitted to the Federal Circuit Court of Australia to be reheard by Judge McGuire. The appellant did not pursue an order that the proceedings be stayed, instead giving an undertaking to the court. As such, it was not appropriate to make an order for costs, or for costs certificates to issue pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

The court dismissed the applications for costs certificates and dismissed the Notice of Cross-appeal and the Application in an Appeal as on and from 23 April 2015, in the absence of submissions to the contrary from either party within 21 days of the date of these orders. The orders of the court were that the appeal be allowed, the orders made on 21 February 2014 be set aside, the proceedings be remitted to the Federal Circuit Court of Australia to be reheard by Judge McGuire, there be no order as to costs, the applications for costs certificates be dismissed, and the Notice of Cross-appeal and the Application in an Appeal be dismissed as on and from 23 April 2015, unless submissions to the contrary were made within 21 days of the date of these orders.