Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2) - [2010] NSWSC 239

Reported Decision:
77 ACSR 550

New South Wales

Supreme Court

CITATION: Amcus Pty Limited v Hurst Rentals Pty Limited & Ors [No 2] [2010] NSWSC 239

HEARING DATE(S): 19 November 2009

JUDGMENT DATE :
30 March 2010

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

DECISION: No further order made.

CATCHWORDS: PROCEDURE - miscellaneous procedural matters - procedure following deregistration of defendant corporation where defendant has cross claim - plaintiff applies to stand over proceedings generally - not desirable as finality is preferable - not possible for the Court to enter judgment against the dissolved corporate defendant - dismissal of cross claim not appropriate - pleading of cross claim not otherwise defective and no identified abuse of process - appropriate course is "do nothing except refrain from proceeding any further" - no need to stand proceeding over generally - proceedings already at an end - no order made

LEGISLATION CITED: Corporations Act 2001 (Cth) Part 5A.1, s 601AD(1),(2),(3),(4), s 601AH
Uniform Civil Procedure Rules 2005 (NSW) r12.1

CATEGORY: Consequential orders

CASES CITED: Amcus Pty Limited v Hurst Rentals Pty Limited & Ors [2009] NSWSC 1016
Astaire Pty Ltd v Cavanagh and Coope, (Supreme Court of Western Australia, Master Seaman QC, unreported, 23 February 1987, Library No 6601)
Daimler Company Ltd v Continental Tyre & Rubber Company (Great Britain) Ltd [1916] 2 AC 307
Lazard Bros & Co v Midland Bank Ltd [1933] AC 289
Morris v Harris (1927) AC 252
Re Morton; Ex parte Mitchell Products Pty Ltd; Morton v Vouris (1996) 21 ACSR 497
Sweeney & Vandeleur Pty Limited v BNY Australia Limited (1993) 11ACSR 356
Total Eden Pty Limited v Pipeline Properties Pty Limited (1990) 8 ACLC 1075
Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Limited [1994] 2 VR 106
United Service Insurance Co Ltd (in liquidation) v Lang (1935) 35 SR (NSW) 487

PARTIES: Plaintiff: Amcus Pty Limited
First Defendant: Hurst Rentals Pty Limited
Second Defendant: Alton Thomas Hurst
Third Defendant: Rejendran Palany

FILE NUMBER(S): SC 3841/07

COUNSEL: Plaintiff: Mr C Harris SC
First Defendant: No appearance
Second Defendant: No appearance
Third Defendant: Mr M J Darke

SOLICITORS: Plaintiffs: Dominic Stamfords
First Defendant: No appearance
Second Defendant: No appearance
Third Defendant: Middletons

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

SLATTERY J

TUESDAY 30 MARCH 2010

3841/07 AMCUS PTY LIMITED v HURST RENTALS PTY LIMITED; ALTON THOMAS HURST & REJENDRAN PALANY [NO 2]

JUDGMENT

1 HIS HONOUR: On 17 August 2009 the Court gave judgment in these proceedings in the sum of $322,767.00 for the plaintiff Amcus Pty Limited (“Amcus”) against the second defendant Alton Thomas Hurst: Amcus Pty Limited v Hurst Rentals Pty Limited & Ors [2009] NSWSC 1016. Judgment was not entered against the first defendant, Hurst Rentals as it had been deregistered under Part 5A.1 Corporations Act 2001 (Cth). The Court ordered Mr Hurst to pay the legal costs Amcus incurred pursuing its claim against both Mr Hurst and Hurst Rentals Pty Limited.

2 As a…

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.

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Details

Case: [2010] NSWSC 239
Decision Date: 30 March 2010

CaseChat Overview and Summary

The case of Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2) was heard before the court. The plaintiff, Amcus Pty Ltd, sought to stand over the proceedings generally after the defendant, Hurst Rentals Pty Ltd, had been deregistered and consequently dissolved. Hurst Rentals had filed a cross claim against Amcus. The court was required to determine the appropriate procedural steps to take in light of the defendant corporation's deregistration and the existence of the cross claim.

The central legal issue before the court was the procedural course of action following the deregistration and dissolution of Hurst Rentals, a corporate defendant, and the presence of a cross claim. The court needed to decide whether to stand over the proceedings, dismiss the cross claim, or adopt some other course of action. The court considered the principles of finality and the impossibility of entering a judgment against a dissolved corporation.

The court held that it was not desirable to stand over the proceedings as this would delay finality. It was also not possible for the court to enter a judgment against the dissolved corporate defendant. Dismissal of the cross claim was not appropriate because the pleading of the cross claim was not defective, and there was no identified abuse of process. The appropriate course of action was to "do nothing except refrain from proceeding any further." The court found that there was no need to stand the proceeding over generally as the proceedings were already at an end. Consequently, no order was made.

No specific orders were made by the court in this matter, as it was determined that the best course of action was to refrain from taking any further procedural steps. The proceedings were considered to be effectively concluded.

Orders