ALF No. 12 Pty Ltd v Starkey - [2006] QSC 297

SUPREME COURT OF QUEENSLAND

CITATION:

ALF No. 12 Pty Ltd v Starkey [2006] QSC 297

PARTIES:

In re SURFERS PARADISE INVESTMENTS PTY LTD (IN LIQUIDATION) (ACN 058 247 064)

ALF NO. 12 PTY LTD
(ACN 083 197 380)
(applicant)
v
GRAHAM L STARKEY
(respondent)

FILE NO:

BS 2426 of 2004

DIVISION:

Trial

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

20 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2006

JUDGE:

Chesterman J

ORDER:

Application dismissed.

CATCHWORDS:

CORPORATIONS – WINDING UP – LIQUIDATORS – APPEAL FROM LIQUIDATORS’ DECISIONS – application for extension of time in which to appeal against rejection of proofs of debt – delay of eight months between rejection and appeal – applicant’s application for extension of time filed more than two years after appeals filed – whether extension should be granted – lack of documentation and significant discrepancies in company accounts – whether applicant has an arguable case

Corporations Regulations 2001 (Cth), reg 5.6.54(2)

Derwinto Pty Ltd (in liq) v Lewis (2002) 42 ACSR 645, followed

Mine & Quarry Equipment International Ltd v McIntosh [2005] QSC 059, followed

COUNSEL:

Mr A Duffy for the applicant
Mr R Lilley for the respondent

SOLICITORS:

Piper Alderman for the applicant
Dibbs Abbott Stillman for the respondent

By application filed on 14 July 2006 the applicant seeks an order that
the time for appealing against the respondent’s rejection of its proofs of debt be extended to

15 March 2004. The power to extend the time is found in Regulation 5.6.54(2) of the Corporations Regulation.

Surfers Paradise Investments Pty Ltd (‘SPI’) was incorporated on 4 December 1992. Thomas Patrick Hayes was the only shareholder and director. The company carried on business as a property developer but because of difficulties it experienced in developing a shopping centre at Sunnybank it became insolvent. The respondent was appointed administrator of SPI on 25 February 2000 on Mr Hayes’ application. The respondent became liquidator of SPI at the instance of a creditor on

5 May 2000.

Mr Hayes lodged two proofs of debt with the respondent on 26 June 2003. One claimed the sum of $228,912 being salary and holiday entitlements for the years ended 30 June 1998, and 30 June 1999, and for the period 1 July 1999 to

25 February 2000. The second proof was for $1,583,243.91 which was said to be a debt owed by SPI to Mr Hayes being the ‘balance … monies advanced to the company as per records … annexed hereto …’.

By a letter dated 14 July 2003 the respondent rejected both proofs of debt. He wrote:

‘Dealing with the proof of debt for $1,583,243.91 … it is my intention to reject … this claim as I have no means of establishing that the funds were in fact received by the company or used by the company.
The claim by Mr Hayes in respect to wages and holiday pay is also rejected in light of his advice … and in view of…

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.

Keep reading for free

Create a free CaseChat account to read ALF No. 12 Pty Ltd v Starkey and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] QSC 297
Decision Date: 20 October 2006

CaseChat Overview and Summary

In the matter of ALF No. 12 Pty Ltd, a company in liquidation, the liquidators sought to have a decision regarding the rejection of certain proofs of debt reviewed in the court. The applicant, a creditor of the company, appealed the liquidators' decision to reject the proofs of debt but did not meet the statutory time limit for such an appeal. The applicant subsequently sought an extension of time to appeal the rejection, arguing that the delay was due to various factors, including the lack of documentation and discrepancies in the company's accounts. The court had to determine whether the applicant's application for an extension of time should be granted, given the significant delay in filing and the lack of documentation and discrepancies in the company accounts.

The court considered the statutory time limits for appealing the liquidators' decisions and the discretion available to grant an extension of time. The court also considered the principles of fairness and equity in determining whether the applicant had an arguable case that warranted an extension of time. The court noted that the applicant had delayed for eight months before seeking an extension of time, and the application for an extension was filed more than two years after the appeals were filed. The court also noted that the applicant had failed to provide adequate documentation and had significant discrepancies in the company accounts.

After considering the evidence and arguments presented by both parties, the court held that the applicant's application for an extension of time should be dismissed. The court found that the applicant had failed to provide a satisfactory explanation for the delay in filing the application for an extension of time and that the lack of documentation and significant discrepancies in the company accounts did not warrant an extension of time. The court held that the applicant did not have an arguable case that would warrant an extension of time, and therefore, the application was dismissed.

The court dismissed the application for an extension of time. The court held that the applicant had failed to provide a satisfactory explanation for the delay in filing the application for an extension of time and that the lack of documentation and significant discrepancies in the company accounts did not warrant an extension of time. The court found that the applicant did not have an arguable case that would warrant an extension of time.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	ALF No. 12 Pty Ltd v Starkey [2006] QSC 297
PARTIES:	In re SURFERS PARADISE INVESTMENTS PTY LTD (IN LIQUIDATION) (ACN 058 247 064) ALF NO. 12 PTY LTD (ACN 083 197 380) (applicant) v GRAHAM L STARKEY (respondent)
FILE NO:	BS 2426 of 2004
DIVISION:	Trial
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	20 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	9 October 2006
JUDGE:	Chesterman J
ORDER:	Application dismissed.
CATCHWORDS:	CORPORATIONS – WINDING UP – LIQUIDATORS – APPEAL FROM LIQUIDATORS’ DECISIONS – application for extension of time in which to appeal against rejection of proofs of debt – delay of eight months between rejection and appeal – applicant’s application for extension of time filed more than two years after appeals filed – whether extension should be granted – lack of documentation and significant discrepancies in company accounts – whether applicant has an arguable case Corporations Regulations 2001 (Cth), reg 5.6.54(2) Derwinto Pty Ltd (in liq) v Lewis (2002) 42 ACSR 645, followed Mine & Quarry Equipment International Ltd v McIntosh [2005] QSC 059, followed
COUNSEL:	Mr A Duffy for the applicant Mr R Lilley for the respondent
SOLICITORS:	Piper Alderman for the applicant Dibbs Abbott Stillman for the respondent