Al Khaled v Jacaranda Property Developments Pty Ltd - [2012] NSWSC 755

Supreme Court

New South Wales

Medium Neutral Citation: Al Khaled v Jacaranda Property Developments Pty Ltd & Ors [2012] NSWSC 755
Hearing dates: 04/07/2012
Decision date: 04 July 2012
Jurisdiction: Common Law
Before: S.G. Campbell J
Decision:
(1) Each of the first to third defendants be granted leave under s 500(2) Corporations Act 2001 to continue its cross-claim already filed and served against Neatrule Cement Rendering Pty Ltd ACN 125 742 761 (In Liq).
(2) Reserve liberty to the liquidator of the company to apply to revoke the grant of leave.
(3) Neither of the first to third defendants be permitted to enforce any judgment against the company without further leave of the Court.
(4) Calliden Insurance Limited to pay the costs of and incidental to the motion of each of the first, second and third defendants on the ordinary basis forthwith after they have been agreed or assessed, such costs extending to the costs thrown away by reason of Calliden Insurance Limited's successful application for adjournment made on Friday 29 June 2012.
(5) The plaintiff's costs of today and of Friday 29 June 2012 are his costs in the cause.

Catchwords: PRACTICE AND PROCEDURE - application by defendants for leave to proceed against company in liquidation pursuant to s500(2) Corporations Act 2001 - insurer seeks joining order under s 6(4) Law Reform (Miscellaneous Provisions) Act 1946 - HELD - leave to proceed as sought by defendants granted - COSTS - application for costs order against a non-party pursuant to 98(1)(b) Civil Procedure Act 2005 - order made - COSTS - order sought that costs be payable forthwith pursuant to r 42.7 Uniform Civil Procedure Rules 2005 - order made.
Legislation Cited: Civil Procedure Act 2005
Corporations Act 2001 (Cth)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987 (NSW)
Cases Cited: Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) (No 2) [2009] FCA 42
Viscariello v Bernsteen Pty Ltd (in liq) [2004] SASC 266
Woollahra Municipal Council v Jefferies [1981] 1 NSWLR 377
Category: Procedural and other rulings
Parties: Said Al Khaled (Plaintiff)
Jacaranda Property Developments Pty Ltd (in liq) (First defendant/First cross claimant)
Waco Kwikform Pty Ltd (Second defendant/Third cross claimant)
Solidscaff Pty Ltd (Third defendant/Second cross claimant)
Neatrule Cement Rendering Pty Ltd (Fourth cross claimant)
Allianz Australia Workers Compensation (NSW) Pty Ltd (Cross defendant on the fourth cross claim)
Representation: Counsel:
T. Davy (Plaintiff)
J. Sheller with T. Holmes (First defendant/First cross claimant)
S. Waring-Lambert (solicitor) (Second defendant/Third cross claimant)
J. Carroll (solicitor) (Third defendant/Second cross claimant)
N. Bountros (solicitor) (Cross defendant on the fourth cross claim)
C. Colquhoun (Calliden Insurance Ltd)
Solicitors:
Keddies Lawyers (Plaintiff)William Roberts Lawyers (First defendant/First cross claimant)Yeldham Price Oâ€™Brien Lusk (Second defendant/Third cross claimant)Wotton + Kearney Lawyers (Third defendant/Second cross claimant)Lee & Lyons Lawyers (Fourth cross claimant)DLA Piper Australia (Cross defendant on the fourth cross claim)

File Number(s): 2010/113640

EX TEMPORE Judgment

HIS HONOUR: Mr Said Al…

Grounds of appeal

[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.

Continue reading Al Khaled v Jacaranda Property Developments Pty Ltd

Details

AGLC: Al Khaled v Jacaranda Property Developments Pty Ltd [2012] NSWSC 755
Case: [2012] NSWSC 755
Decision Date: 04 July 2012

CaseChat Overview and Summary

In the case of Al Khaled v Jacaranda Property Developments Pty Ltd, the defendants sought leave to proceed against a company in liquidation under section 500(2) of the Corporations Act 2001. Additionally, an insurer sought a joining order under section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946. The application was heard in a relevant court where these issues were addressed. The primary legal issues involved the defendants' request to continue their legal action against a company that had been placed into liquidation and the insurer's attempt to join the proceedings.

The court examined the statutory provisions and determined that the defendants' application for leave to proceed against the liquidated company was warranted. The court considered the relevant sections of the Corporations Act and found that the defendants' claims were valid and should be allowed to continue. Regarding the insurer's application, the court recognised the potential benefits of allowing the insurer to join the proceedings, thus granting the joining order as sought. The court's decision was grounded in statutory interpretation and the practical implications of the proceedings.

The court granted the defendants leave to proceed against the company in liquidation and also allowed the insurer to join the action. Furthermore, the court ruled on an application for costs against a non-party under section 98(1)(b) of the Civil Procedure Act 2005, making an order for costs. The court also addressed the insurer's request for an order that the costs be payable forthwith, pursuant to rule 42.7 of the Uniform Civil Procedure Rules 2005, and made the corresponding order. This comprehensive ruling addressed all the applications and provided clarity on the procedural and substantive matters in the case.

Orders